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United States Fidelity and Guaranty Company v. The Industrial Commission of Arizona

Supreme Court of Arizona

November 22, 1933

UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Petitioner,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, HOWARD KEENER and L. C. HOLMES, as Members of Said Industrial Commission of Arizona, OCEAN ACCIDENT AND GUARANTEE CORPORATION, LTD., and FLORA FRANCES HAWES, SHELDON HAWES, KATHLEEN HAWES and DORIS LEE HAWES, Surviving Widow and Minor Children of RALPH W. HAWES, Deceased, Respondents

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award affirmed.

Messrs. Moore & Shimmel, for Petitioner.

Mr. Don C. Babbitt and Mr. D. L. Cunningham, for Respondent Industrial Commission.

Mr. C. H. Young and Mr. H. S. McCluskey, for Respondent Ocean Accident and Guarantee Corporation, Limited.

Messrs. Rice & Mathews, for Hawes' Dependents.

OPINION

Page 1013

[42 Ariz. 424] LOCKWOOD, J.

This matter comes before us on a writ of certiorari sued out by United States Fidelity and Guaranty Company, a corporation, hereinafter called petitioner, against Industrial Commission of Arizona, the Ocean Accident and Guarantee Corporation, Limited, a corporation, hereinafter called the company, and Flora Frances Hawes, Sheldon Hawes, Kathleen Hawes and Doris Lee Hawes, hereinafter called the claimants, to review an award made by the Industrial Commission in favor of the claimants and against the petitioner and the company jointly.

The material facts of the case are nowise in dispute, the only question before us being as to the legal construction to be put on such facts. We therefore state them as follows: On the first day of June, 1932, one I. P. Fraizer together with Ralph W. Hawes were killed by the explosion of a tank of gasoline occurring at a certain oil plant being operated by Fraizer at Miami, Arizona, under the terms of a certain contract with the Texas Company, the owner of the plant. The claimants made application to the commission for compensation for the death of Hawes. The matter [42 Ariz. 425] came before the commission in the usual manner without a formal hearing, upon the claim of the widow and the affidavit of a witness to the accident and an award was made against the company, it being the insurance carrier for Fraizer. Thereafter the company filed a petition for rehearing denying liability on its part and alleging that the liability arising out of the death of Hawes was in the petitioner, which was the insurance carrier for the Texas Company. Petitioner asked leave to appear, which was granted, and on the 28th of January, 1933, a full hearing was held at which evidence in support of the claims of the respective parties was introduced and on the twenty-fourth day of May the commission made its findings and award allowing claimants a certain amount "payable . . . by the defendant insurance carriers," and finding the following facts:

"6. That R. W. Hawes was employed by I. P.Frazier and his wages were fixed and

Page 1014

paid by said I. P. Fraizer, and that the plant wherein he was employed was owned and operated by the Texas Company.

"7. That I. P. Fraizer was under a written agency contract with the Texas Company of California, in conducting the business of receiving, unloading, storing and distributing petroleum products of said company. That the work which I. P. Fraizer was performing under said contract, and the work which R. W. Hawes was performing at the time of his death, was a part or process in the trade or business of the Texas Company, and that said company retained supervision and control over said work, and said I. P. Fraizer and his employees in the performance thereof."

Thereafter and in due from application was made by petitioner for the writ of certiorari on which this matter is before us, the company not joining in the application, although after the writ was granted and the matter set down for hearing, it appeared and filed a brief in support of its contention made before the [42 Ariz. 426] ...


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