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Clare v. Malia

Supreme Court of Arizona

November 21, 1938

CONNIE CLARE, Petitioner,
v.
J. A. MALIA, Utah Bank Commissioner, Receiver of the INTERMOUNTAIN BUILDING AND LOAN ASSOCIATION, OF UTAH, a Corporation, Defendant-Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, L. C. HOLMES and SAM PROCTOR, Members of said Industrial Commission of Arizona, Respondents

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

Mr. Frank Dykes and Mr. E. E. Selden, for Petitioner.

Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Respondents.

OPINION

[52 Ariz. 553] LOCKWOOD, J.

Intermountain Building and Loan Association, a Utah corporation, hereinafter

Page 457

called the company, was for many years operating a building and loan association in the states of Arizona and Utah. It finally went into bankruptcy, and from March 22, 1934, to November 30, 1935, its affairs were operated by J. A. Malia, who was the state bank commissioner for the state of Utah, as a receiver in bankruptcy. The company had made many loans on property in Arizona, and had been compelled to foreclose some mortgages which it held. As a result of these foreclosures, it was the owner of the Westward Ho Garage, located in Phoenix, which was under lease to J. R. Hymer up to July 1, 1935. On June 10th of that year, the Industrial Commission of Arizona, hereinafter called the commission, issued a workmen's compensation insurance policy to Malia, and it is the [52 Ariz. 554] interpretation of this policy which is the basis of this appeal.

On July 1st the company took over the Westward Ho Garage from Hymer, and operated it until November 1st of the same year. Connie Clare, hereinafter called petitioner, had been in the employ of Hymer, and at first Malia left him in general charge of the garage, but shortly thereafter another man was placed in charge, and petitioner thereafter merely serviced and parked cars in the garage, performing the usual duties of such an employee. On the 28th of September, 1935, he received an injury arising out of and in the due course of his employment, and in Septermber, 1936, nearly a year later, made application to the commission for compensation for the injury. After a careful investigation, the commission made the following findings and award:

"Findings.

"1. That on or about September 28, 1935, the above-named applicant, while employed in the State of Arizona, sustained an injury by accident arising out of and in the course of his employment by the above-named defendant employer, at the Westward Ho Garage, Phoenix, Arizona.

"2. That the business of the above-named employer at said time and place was not covered under the Workmen's Compensation Law of Arizona by any insurance contract issued by the Industrial Commission of Arizona.

"3. That the Industrial Commission of Arizona has failed to obtain jurisdiction over the person of J. A. Malia, Utah Bank Commissioner, Receiver of the Intermountain Building and Loan Association of Utah, a corporation, or the successors to said employer.

"Award.

"Now, therefore, it is ordered that said proceeding be dismissed by reason of ...


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