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Andrews v. State

Supreme Court of Arizona

May 29, 1939

ELSIE ANDREWS, LOVELLA PATRICIA ANDREWS, JOANN ANDREWS, DELVIN ANDREWS, MAYNARD ANDREWS and LAHOMA ANDREWS (Applicants), Petitioners,
v.
THE STATE OF ARIZONA, STATE AUDITOR, and ARIZONA NATIONAL GUARD (Defendant Employer), and THE INDUSTRIAL COMMISSION OF ARIZONA (Defendant Insurance Carrier), Respondents

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

Mr. Frank J. Duffy, for Petitioners.

Mr. Howard A. Twitty, for Respondents.

OPINION

Page 996

[53 Ariz. 476] ROSS, C.J.

This appeal comes to us on certiorari to the Industrial Commission of the state and is prosecuted by the dependents of one Josiah Andrews from an award rejecting their claims for death benefits under the workmen's compensation law of this state. Section 1391 et seq., Rev. Code 1928.

Josiah Andrews was a member of Battery E, 158th Field Artillery, Arizona National Guard. At the time of his death he was with his unit of the Arizona National Guard, participating in field training, at Camp Bullis, Fort Sam Houston, Texas, such field training being provided for by the Secretary of War under an authorization dated May 25, 1938, in pursuance of the provisions of section 94, National Defense Act (June 3, 1916, chap. 134, 39 Stat. 206; sec. 63, Title 32, U.S.C.A.).

July 20, 1938, the Governor of Arizona, acting through and by his Adjutant General, issued a special [53 Ariz. 477] order under section 94, supra, and the authorization of the Secretary of War, that Battery E, 158th Field Artillery, Mesa, Arizona, should

"participate in field training with the Oklahoma National Guard at Camp Bullis, Texas, for the period August 6th to 22nd, 1938, inclusive, including travel time."

While at such encampment, and while in the line of his duty on August 11, 1938, Andrews fell from the rear end of a moving truck, was run over by a gun carriage and killed.

The application by the deceased's widow and minor children for death benefits was disallowed by the Industrial Commission on the ground that at the time of the accident causing his death Andrews was in the employment of the United States and not Arizona. The question is, does the Workmen's Compensation Law cover the case. The act of enlisting in the National Guard is of a contractual nature. Section 123, Title 32, U.S.C.A., provides that "Men enlisting in the National Guard of the several States... shall sign an enlistment contract and subscribe to" an oath of allegiance to the United States and the state of enlistment. It has been held that the act of enlistment in the army is a voluntary and not an involuntary act. Rector v. Cherry Valley Timber Co., 115 Wash. 31, 196 P. 653, 13 A.L.R. 1247. It is a contract for services during the period of enlistment. Under the contract the state has employed the enlisted man. Section 1418, Revised Code of 1928, provides that the state as an employer shall be subject to the Workmen's Compensation Law, and section 1419, Id., provides that:

"The terms 'employee,' 'workman,' and 'operative,' as used herein, mean: Every person in the service of the state... under appointment or contract of hire, except the elective officials and except officials receiving [53 Ariz. 478] more than twenty-four hundred dollars per year salary...."

We think the services Andrews was rendering when he was killed clearly bring him within the Workmen's Compensation Law and that his surviving widow and minor children would be entitled to death benefits if the provisions of the Workmen's Compensation Law were the only applicable law. In that event, the fact that Andrews received his fatal injury in the state of Texas would make no difference. Section 1429, Id.

In Croaff v. Harris,30 Ariz. 357, 362, 247 P. 126, 128, decided in June, 1925, Croaff was seeking to recover from the state regular pay for attending officers' training school at Camp Benning, Georgia, and for attending a rifle practice meet at Camp Perry, Ohio, claiming he was entitled to such pay, under paragraph 3945, Civil Code of 1913, as amended by section 122, chapter 35, Laws of 1922, in ...


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