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. Riney B. Salmon and Mr. J. A. Riggins, Jr., for Respondent Lorena O. Davis.
[54 Ariz. 3] LOCKWOOD, J.
Southern Pacific Company, a corporation, the petitioner, has brought before us for review an award of the Industrial Commission of Arizona, the respondent, reinstating a certain award previously made by respondent in favor of Lorena O. Davis, the beneficiary.
The questions for our determination are of law only, and the facts necessary for their determination are not in dispute. We state them as follows: On April 14, 1926, William A. Davis, the husband of Lorena O. Davis, was in the employ of petitioner. On that date, and in the course of his employment, he received injuries resulting in his death. His widow made application to respondent for an award for the support of herself and children, and on July 8, 1926, respondent awarded her the sum of $61.42 monthly for her support, which payments were to continue until her death or remarriage. In the latter event she was to be paid a lump sum of $1,474.08, in final settlement of the award. There were several minor children of the deceased, and an award was made in their favor also, but as they are now of age and their rights are not involved in the present case, we need not refer further to them.
On January 20, 1938, the beneficiary intermarried with one Ray Earl Menefee, at Florence, Arizona. A few days after that date she advised petitioner and respondent of the fact and in evidence thereof delivered the latter certified copies of the marriage certificate, including the return of the person solemnizing the rites, and demanded of petitioner that it pay her the lump sum above set forth, in final settlement of the award. The matter was presented to respondent, which approved such settlement, and acting under this [54 Ariz. 4] advice and the request of the beneficiary, the petitioner delivered to her a negotiable voucher, for a small balance then due her under the original award before her remarriage, and for the amount due as a lump sum after remarriage. This voucher showed on its face that it was made in full settlement of the award. On February 10, 1938, the voucher was endorsed by her, presented at the proper bank, and she received its full face amount.
Some five months later the beneficiary filed a complaint in the superior court of Maricopa county, praying for a divorce from Ray Earl Menefee on the ground of cruelty. About a month and a half later an amended complaint was filed in the same court and cause, seeking a decree of annulment instead of a decree of divorce. As grounds for her suit for annulment, she charged that Menefee was physically incompetent at the time of the marriage, and that such incompetence had continued up to the time of the commencement of her action; that before marriage he had assured her he was competent; and that she would not have entered into said marriage contract except for his fraudulent statements and assurances. On the 8th of August, 1938, the trial court granted to her a decree of annulment of the marriage, which reads, so far as material, as follows:
"The Court, being duly advised in the premises, finds:
"That the allegations of the plaintiff's complaint, all and singular, are true; that the plaintiff is now and for more than one year last past has been an actual and bona fide resident of Maricopa County, State of Arizona; that the plaintiff and defendant entered into the contract of marriage and the marriage ceremony at Florence, Arizona, on the 20th day of January, 1938; that there is no issue of said marriage; that there is no community property of the parties hereto; that at the time of said marriage of plaintiff and defendant [54 Ariz. 5] herein plaintiffwas physically incompetent, and that said incompetency has continued to the time of the commencement of this action; that defendant induced said plaintiff to enter into said marriage contract by fraudulent statements and assurances regarding his physical competency; and that said marriage was fraudulent in its inception, and therefore null and void.
"Wherefore, it is ordered, adjudged and decreed: That the bonds of matrimony heretofore existing between plaintiff and defendant are hereby annulled, cancelled,
set aside and held to have been null and void; and that said plaintiff be, and she is hereby granted a decree ...