RUBY LEE DANNER, by ERWIN H. KARZ, Her Guardian ad Litem, Appellant,
THE INDUSTRIAL COMMISSION OF ARIZONA, and L. C. HOLMES, SAM W. PROCTOR and LYNN LOCKHART, as Members of and Constituting the Industrial Commission of Arizona, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Allen K. Perry, for Appellant.
Mr. Rouland W. Hill and Mr. Howard A. Twitty, for Appellees.
[54 Ariz. 276] LOCKWOOD, J.
Dempsey Danner, hereinafter called deceased, on the 16th of February, 1937, was in the employ of one George H. Ennis, hereinafter called the employer, on which date he sustained an injury by an accident arising out of and in the course of his employment, which proximately caused his death on the next day. Thereafter, Ruby Lee Danner, his wife, hereinafter called plaintiff, applied to the Industrial Commission of Arizona, hereinafter called the commission, for compensation for the death of the said Dempsey Danner. It appeared at the hearing that the employer, at the time of the death of deceased, had not secured insurance against liability for compensation for such death under any of the methods set forth in section 1422, Revised Code 1928, although it was his duty to do so, and that plaintiff had elected to file application for compensation in accordance with the terms of section 1433, Revised Code 1928. The commission found that it was to her best interest that the compensation to which she was entitled be commuted to its present value of $4,429.48 and paid to her in a lump sum. An award was, therefore, made which, so far as material to the present proceeding, reads as follows:
[54 Ariz. 277] "Award
"IT IS ORDERED that a death benefit be, and it is hereby awarded to said applicant, Ruby Lee Danner, by the above named defendant employer as follows:
"1. Payment of the reasonable expense of the burial of the deceased, not to exceed the sum of $150.00.
" 2. The sum of $4429.48, payable forthwith.
"IT IS FURTHER ORDERED that by virtue of section 1433. R.C.A. 1928, that this award be paid within ten days from the date of service of this award."
No rehearing of said award was ever asked for, and it has never been set aside, appealed from nor modified. Plaintiff made application to the commission that she be paid this award out of the state compensation fund created by the provisions of chapter 24 of article 5 of the Revised Code of 1928, section 1391 et seq., commonly referred to as the "Workmen's Compensation Act," but the commission refused to make any payment from said fund, although there were moneys therein sufficient to pay the award. Thereafter plaintiff commenced this suit in the superior court of Maricopa county, asking that a writ of mandamus be issued, commanding the commission to pay the award aforesaid from the state compensation fund. An alternative writ was issued, and the commission appeared and moved to quash the writ and then demurred generally to the complaint, which demurrer was by the court sustained. Plaintiff electing to stand on the complaint, judgment was rendered dismissing the case, and this appeal was taken.
There are a number of questions raised by the appeal, both procedural and substantive in their nature, but we think it should be decided on the question of whether, under the facts, the plaintiff is entitled to payment of the award made by the commission from the state compensation fund. This will be determined by [54 Ariz. 278] the interpretation of the Workmen's Compensation Act.
Plaintiff bases her claim on the italicized portions of sections 1422 to 1424, inclusive, Revised Code 1928. These sections read, so far as material to ...