N. H. MARSHALL; or N. H. MARSHALL and A. MARTINEZ, a Co-partnership d. b. a., HAROLD BEVERAGE COMPANY, Petitioners,
THE INDUSTRIAL COMMISSION OF ARIZONA, and EDITH MAE ROBINSON, Repondents
APPEAL by certiorari from an Award of The Industrial Commission of Arizona.
Mr. George D. Locke, and Mr. J. B. Sumter, for Petitioners.
Mr. H. S. McCluskey, and Mr. David P. Jones, for Respondents.
LaPrade, J. Stanford, C. J., and Morgan, J., concur.
[62 Ariz. 231] This matter is before us on a writ of certiorari from an award of the Industrial Commission granting death benefits to Edith Mae Robinson as the surviving widow and sole dependent of Arnold Scott Robinson, deceased. Mr. Robinson sustained an injury by accident on June 1, 1943, arising out of and in the course of his employment by the petitioner herein which resulted in his death a few hours after the accident. After a claim was filed, the deceased's employer filed its report with the commission denying liability upon the ground that on the day and at the [62 Ariz. 232] time of the accident it had only one workman regularly employed in its business at Parker, Arizona.
It appears from the findings of fact and award of the commission, and not disputed by the petitioner that during the months July to November 1942, both inclusive, the petitioner continuously had in its employ three or more workmen
regularly employed in the operation of its bottling works at Parker; that during the month of December 1942 petitioner's source of sugar supply was cut off by an order of the Office of Price Administration (O. P. A.), and by reason thereof the manufacturing plants were temporarily suspended pending adjustment of the difficulty; that during the months of December 1942 to May 1943, both inclusive, petitioner continued in the business of purchasing and distributing beverages (soft drinks) manufactured in California and delivered by it in Arizona; that during said last-named period of time it did not have in its employ three or more men, but during said period it had in its employ one or two men at Parker, Arizona; that shortly after June 1, 1943, it resumed normal operations and at all times subsequent to the 12th day of June 1943, it had in its employ three or more employees; and, that at no time had it complied with the provisions of the Arizona Workmen's Compensation Law relative to securing insurance for its employees. Within the time provided by law, petitioner filed an application for a rehearing, predicated upon the proposition that, inasmuch as the commission had found as a fact that on the day and at the time of the accident and for approximately six months prior thereto petitioner had in its employ only one or two men, it lacked jurisdiction to make an award of compensation under Section 56-947, Arizona Code Annotated 1939. This petition was denied. Hence this review.
Petitioner contends that in all cases arising under Section 56-947, Arizona Code Annotated 1939, the [62 Ariz. 233] number of employees on the day and at the time of the accident is a jurisdictional fact which must be determined by the commission; and, that whenever it conclusively appears that on the day and at the time of an accident an employer had in his employ less than three workmen regularly engaged in the same business, or in or about the same establishment, the commission must, as a matter of law, dismiss the application for compensation for want of jurisdiction.
The sole issues here presented are:
1. Was the petitioner herein an employer as defined by Sections 56-928 and 56-947, ...