JAMES L. BRADLEY, Petitioner,
THE INDUSTRIAL COMMISSION OF ARIZONA, L. C. HOLMES, J. NEY MILES, and SAM PROCTOR, as Members of Said the Industrial Commission of Arizona, and W. J. TURBEVILLE, Applicant-Employee, Respondents
APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award set aside.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Petitioner.
Mr. Don C. Babbitt, Mr. Howard A. Twitty and Mr. Burt H. Clingan, for Respondents.
[51 Ariz. 293] LOCKWOOD, J.
W. J. Turbeville, hereinafter called petitioner, made application to The Industrial Commission of Arizona, hereinafter called the commission, for compensation for an injury which he claimed arose out of and in the due course of his employment by James L. Bradley, hereinafter called the employer. The commission made an award in favor of petitioner, and, after rehearing, affirmed such award, and the employer brought the matter before us for review.
There is no dispute as to the employment, the accident, and the injury, but it is contended that the following finding of the commission:
"2. That at said time said employer and said employee were subject to the terms of the Workmen's Compensation Law and to the jurisdiction of this Commission,"
is not sustained by the evidence, for the reason that it appears affirmatively that petitioner had before the accident elected to reject the provisions of the Compensation Law. Section 1430, Revised Code 1928, reads, in part, as follows:
"Provided however, that it shall be optional with employees to accept compensation as provided herein or to reject the provisions hereof and retain the right to sue said employer as provided by law. Such election to reject the terms of this article shall be made by a notice in writing, signed and dated, given by an employee to his employer, in duplicate, in substantially [51 Ariz. 294] the following form: 'To (name of employer): You are hereby notified that the undersigned elects to reject the terms, conditions and provisions of the law for the payment of compensation, as provided by the compulsory compensation law of the state of Arizona, and acts amendatory thereto.' Such notice must be filed with the employer prior to injuries sustained by such employee, and thereafter, and within five days, the employer must file with the commission the duplicate of such notice so served by such employee."
The evidence shows conclusively and, indeed, it is not disputed, that petitioner did sign a notice in duplicate of the form set forth in section 1430, supra, and that the duplicate was in due time filed with the commission. Petitioner contends, in substance, however, that he did not know what he was signing when he executed the election to reject and that he, therefore, is not bound thereby. We have held that the commission is not bound by many of the ordinary rules of evidence in determining whether an award should or should not be made. Blankenship v. Industrial Com; 34 Ariz. 2, 267 P. 203; Ocean Accident & Guar. Corp. v. Industrial Com; 34 Ariz. 175, 269 P. 77; Johnson v. T.B. Stewart Const. Co., 37 Ariz. 250, 293 P. 20. On the other hand, when the commission makes an award, it is acting judicially and is, therefore, bound to follow the general principles of law. Doby v. Miami Trust Co., 39 Ariz. 228, 5 P.2d 187; Edens v. L.E. Dixon Const. Co., 42 Ariz. 519, 27 P.2d 1107. We think one of these principles when applied to an attempt to defeat an election to reject the Compensation Law, made as provided in section 1430, supra, is that the party electing may not set aside his election on the ground that he did not understand the effect of the written instrument unless he brings himself within the usual rule of law as to the showing necessary to set aside a written contract [51 Ariz. 295] on the ground that the party did not understand its terms.
It is universally held that, when the parties to a contract have reduced it to writing, one of them may not defeat it by showing by parol evidence that he did not understand what the contract meant, except on the ground of mutual mistake, fraud, or misrepresentation, and the modern doctrine is that the rule, strictly speaking, is one of substantive law rather than of evidence. 22 C.J. 1075, and cases cited. There is no contention that there was a mutual mistake of fact, and the question is whether petitioner was induced to execute the election by any legal fraud or misrepresentation. In so determining we must, of course, take the evidence as strongly as possible in favor of the finding of the commission which necessarily implies that the waiver was obtained by fraud or misrepresentation, and we therefore
consider only the evidence of petitioner himself as to the circumstances under which the election was executed. Shortly before he went to work for Bradley in the occupation in which he was injured, an insurance agent named Vernon came to see him. The material testimony in regard to what happened between the agent and petitioner is stated by the latter as follows:
"Q. Along in February? What is this man's name? A. Vernon.
"Q. What did he tell you? A. Well, he came out and told me he wanted to talk about insurance. I told him, 'Mr. Vernon, you needn't talk to me because I am just making bread.' He said, 'Well, that is all right, J. L. will --
"Q. J. L. what? A. He did not say, just said 'J. L.' I had a right to know he was referring to J. L. Bradley. He said 'Bradley is going to pay this for you and if anything happens the check will come to you and not to J. L. hisself.' I told him it was all right if Mr. Bradley wanted to pay insurance on me he could go ahead and write it.
[51 Ariz. 296] "Q. He wrote up an application, did ...