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Killebrew v. Industrial Commission

Supreme Court of Arizona

February 3, 1947

KILLEBREW
v.
INDUSTRIAL COMMISSION et al

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Tobert W. Killebrew, claimant, opposed by O. R. Verretto and another, doing business as Riverside Ranch. To review an award of the Industrial Commission denying compensation, the claimant appeals by certiorari.

Award set aside.

E. C. Locklear and Donald J. Morgan, both of Prescott, for petitioner.

John R. Franks, of Phoenix, for respondent Commission.

Byrne & McDaniel, of Prescott, for respondent Employer.

Croaff, Superior Judge. Stanford, C. J., and LaPrade, J., concurring.

Note: MORGAN, J., having disqualified himself, the remaining judges, under section 3 of article 6 of the Constitution, called in Honorable Thomas J. CROAFF, Judge of Superior Court of Maricopa County, to sit with them in the hearing of this case.

OPINION

Croaff, Superior Judge.

This is an appeal by certiorari from an award of the Industrial Commission.

Petitioner Tolbert W. Killebrew filed a claim before the Industrial Commission alleging that on July 1, 1945, he sustained an injury to his eye while employed in work in connection with a hay baling machine owned and operated by his employers, O. R. Verretto and J. J. Sullivan, Jr., and at the time alleged, was engaged in contract hay baling for one Walter A. Duncan, near Clemenceau, Arizona.

[65 Ariz. 164] The hay baling machinery was purchased by Verretto and Sullivan and used by them in the operation of their own ranch, known as Riverside Ranch. When not so engaged, Verretto and Sullivan contracted hay baling on neighboring ranches and used the hay baling machinery in such contract work.

After the petitioner filed his claim for compensation, the Industrial Commission, upon investigation and the taking of evidence, made its Findings and Award.

"Findings

"1. That the above-named applicant, while employed in the State of Arizona, by the above-named defendant employer, sustained an injury by accident arising out of and in the course of his employment on or about July 1, 1945.

"2. That at said time said applicant and said employer were not subject to the terms of the Workmen's Compensation Law or to the jurisdiction of this Commission by reason of the fact that at said time said employer did ...


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