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Kay v. Hillside Mines, Inc.

Supreme Court of Arizona

June 26, 1939

EVA AFTON HANCOCK KAY, Petitioner,
v.
HILLSIDE MINES, INC., a Corporation, Defendant Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents

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

Messrs. Cunningham & Carson and Mr. A. S. Gibbons, for Petitioner.

Mr. Rouland W. Hill and Mr. Howard A. Twitty, for Respondents.

OPINION

Page 868

[54 Ariz. 38] LOCKWOOD, J.

This is an appeal by Eva Afton Hancock Kay, hereinafter called petitioner, from an award of the Industrial Commission, hereinafter called respondent, denying her any death benefit compensation on account of the death of her late husband, John Kay.

The facts of the case are in no manner in dispute, and may be stated as follows: John Kay, hereinafter called deceased, died leaving surviving him petitioner and four minor daughters, Louise, Corrine, Janice and Doris Kay. The circumstances surrounding his death were set forth in the findings of respondent made upon the application of the widow for death benefits for herself and her minor children, as follows:

"1. That the above named deceased, while employed in the State of Arizona by the above named defendant employer, sustained a hernia by reason of a severe strain and blow, caused by an accident arising out of and in the course of the employment of the deceased, on September 14, 1938.

"2. That the descent of the hernia occurred immediately following the severe strain and was immediately followed by a very severe pain in the hernial region.

"3. That the strain, descent of hernia, and pain were of such severity that the same were noticed by the deceased and communicated immediately to his employer.

"4. That on November 1, 1938, an operation was necessary and was performed to repair the hernia of the deceased, and on November 3, 1938, the deceased died. That his death was proximately caused by the shock of the anaesthetic and herniotomy.

"5. That the deceased left surviving him and totally dependent upon him for their support at the time of said injury the following persons: (naming petitioner and her children).

"6. That the deceased was continuously employed for the period of thirty days immediately preceding [54 Ariz. 39] his injury, and his actual and average wage was $143.10 per month."

The respondent was of the opinion that under these facts and the law, petitioner and her children were not entitled to any death benefits, and an award was made accordingly. It ...


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