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King v. Alabam's Freight Company

Supreme Court of Arizona

June 13, 1932

HELEN KING, JACK EDWARD KING, VINCENT V. KING, FRANK E. KING, MYRTLE KING and MARGARET KING, Petitioners,
v.
ALABAM'S FREIGHT COMPANY, a Corporation, Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, and R. B. SIMS, BURT H. CLINGAN and WM. H. HUNTER, Members of the Industrial Commission of Arizona, Respondents

PETITION for Writ of Certiorari to set aside an award of the Industrial Commission. Award affirmed.

Mr. H. S. McCluskey, for Petitioners.

Mr. Burt H. Clingan and Mr. Albert Mackenzie, for Respondent Industrial Commission of Arizona.

OPINION

[40 Ariz. 364] LOCKWOOD, J.

Helen King, Jack Edward King, Vincent V. King, Frank E. King, Myrtle King and Margaret King, hereinafter called petitioners, in the early part of 1930 filed an application before the Industrial Commission of Arizona, hereinafter called the commission, asking compensation for the death of John David King, the husband of the first petitioner and the father of the others, which death it was alleged was caused on January 11th, 1930, by an accident arising out of and in the course of his employment by the Alabam's Freight Company, a corporation, hereinafter called the respondent, while he was endeavoring to care for certain employees and property of respondent he had reason to believe were exposed in a severe snowstorm on the road between Prescott and Jerome.

An award was made on July 3rd, 1930, denying compensation on two grounds: First, that deceased was not at the time of his death in the service of respondent; [40 Ariz. 365] and, second, that if he was, his death did not arise out of his employment.

The matter was brought before us in the usual manner on certiorari, and we held that the evidence as it then stood did not support either the finding of the commission that deceased was not employed by respondent or the one that his death did not arise out of and in the due course of such employment, and set the award aside. The evidence as shown by the record then before us is set forth quite fully in our opinion. King v. Alabam's Freight Co., 38 Ariz. 205, 298 P. 634.

Subsequent to the receipt of the opinion and mandate of this court, the commission on the twenty-ninth day of May, 1931, served notice on petitioner Helen King, her attorney, H. S. McCluskey, and respondent that on June 26th, at 10 A.M., the commission would proceed to hear and dispose of the application for compensation. On that date and on several occasions thereafter the commission proceeded to take evidence, both old and new, covering all of the material issues upon which it was necessary that findings be made to determine the question as to whether petitioners were entitled to compensation, treating the proceedings as in effect a hearing de novo upon the original application for compensation.

On December 17th an award was made which contained some twenty-nine findings of fact and denied any compensation to petitioner. These findings of fact are full and complete, but it is not necessary that we set them all forth in full in this record. Those material to the determination of the case on certiorari are the following:

"5. That the death of said John David King did not arise out of or occur in the course of his employment by said Black Canyon Stage Company."

"11. That said Alabam's Freight Company sent two trucks out from Phoenix to Prescott and Jerome [40 Ariz. 366] on Friday, January 10th, 1930. That said trucks were stalled by the storm at Congress Junction approximately forty miles south of Prescott and that the

Page 295

Prescott office was notified of the disposition of these trucks and contents.

"12. That the Prescott agent for Alabam's Freight Company, J. L. Freeman, had charge of the northern Arizona district of said company and notified the Jerome agent, Timothy Kirkpatrick, Saturday morning, January 11th, 1930, that all traffic around Prescott was tied up by the storm and that no trucks would attempt to reach Jerome that day."

"14. That before leaving his house that morning said Freeman told his wife, Violet Freeman, of the conversation with Kirkpatrick. That the fact that no trucks of the defendant employer were on said Prescott-Jerome road and that no trucks would attempt to reach Jerome that day was again made clear to said Timothy Kirkpatrick ...


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