APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.
Messrs. Perry, Silverthorne & Johnson, for Petitioner.
Mr. Wm. H. Chester, Mr. Rouland W. Hill, and Mr. Howard A. Twitty, for Respondents.
[58 Ariz. 205] LOCKWOOD C.J.
This matter is before us on certiorari from an award of the Industrial Commission, in favor of L. L. Moody, petitioner, and against Red Rover Copper Company, a corporation, called the company.
[58 Ariz. 206] The record before us shows the following facts: In early November, 1940, petitioner applied to the company for employment at its mine. On November 13 he was told by the foreman that if he would sign a rejection of benefits under the Workmen's Compensation Act he would be employed, but not otherwise. He was also told that he would be insured by Lloyd's of London, and that such insurance was better than state compensation, as it insured him twenty-four hours a day, off and on the job. He signed the rejection and went to work on the following morning, continuing in his employment until November 25, when he was injured by an accident which admittedly arose out of and in the course of the employment. He was given medical attention and was paid compensation, on the basis of the Lloyd's policy, from the date of his injury, until March 28, 1941. On March 20, 1941, he filed a claim for compensation under the Act with the commission, setting forth his injuries and an affidavit to the effect that he had rejected the Compensation Act because he was told that he could not go to work unless he did so, and that the industrial insurance carried by Lloyd's was better than the state industrial insurance. Due notice of the hearing was given to the company and it was represented thereat. A copy of the Lloyd's policy covering the petitioner was introduced and it clearly appeared therefrom that the benefits thereunder were much less than that provided by the Act for injuries such as the evidence shows petitioner received. The evidence also shows that at the time of the hearing petitioner was still suffering from temporary total disability and his condition had not reached a stationary stage.
The matter was submitted to the commission for decision, and thereafter, and on June 18, 1941, petitioner executed a release, which reads are follows:
[58 Ariz. 207] "For and in Consideration Of the sum of Two Hundred Fifty and no/100 dollars ($250.00) to me in hand paid and the further sum of Five Hundred Sixteen and 12/100 dollars ($516.12) heretofore paid to me, I hereby release and forever discharge Red Rover Copper Company at Cave Creek, Arizona and/or Underwriters at Lloyd's London, of and from any and all claims which I might have or may hereafter have against either the Red Rover Copper Company or Underwriters at Lloyd's, London,
on account of loss or damage sustained by me on account of accident which occurred on or about November 21, 1940 while in the employ of the Red Rover Copper Company.
"It is the intent and purpose of this release to fully discharge from any liability or further responsibility on account of said accident not only the Red Rover Copper Company on account of any obligations which they might have on account of occurrence of said accident but also to fully release Underwriters at Lloyd's, London from any further liability under the terms of its contract of insurance #18135-6 as issued to the Red Rover Copper Company and providing for the payment of said benefits to the undersigned in the event of injury.
"Dated at Medford, Ore., this 18 day of June, 1941."
This release was never approved by the commission nor did it know that it had been executed until July 21, when the company filed a petition for rehearing.
On July 12 the commission made an award, which contained, among other things, the following findings:
"4. At the time applicant was employed by defendant, to-wit, November 13, 1940, defendant required applicant, as a condition of said employment, to sign an instrument purporting to reject the terms of the ...