Appeal by Certiorari from an Award of the Industrial Commission of Arizona.
Proceeding under the Workmen's Compensation Act by Garold G. Weisbarth, claimant, opposed by Joe Tooley, doing business as Joe Tooley Produce Company to recover for injuries. To review an award of the Industrial Commission of Arizona in favor of the claimant, the employer appeals by certiorari.
Glenn Ginn and Ashby I. Lohse, both of Tucson, for petitioner.
James N. Corbett, of Tucson, for respondent-employee.
John R. Franks, of Phoenix (H. S. McCluskey, of Phoenix, of counsel), for respondent Industrial Commission.
Udall, Justice. Stanford, C. J., concurs.
[66 Ariz. 231] This matter is before us on a writ of certiorari from an award of the Industrial Commission granting compensation and accident benefits to Garold G. Weisbarth as an employee of Joe Tooley, d. b. a. Joe Tooley Produce Company. The employer, who admittedly had more than three employees, had failed to comply with the insurance provisions of the Workmen's Compensation Act. Claimant initiated this proceeding under the provisions of sec. 56-947, A.C.A.1939, after having filed his election of remedy with the Commission as provided by sec. 56-949.
[66 Ariz. 232] After a hearing, the Commission made findings and an award to claimant on October 8, 1946, whereupon the employer asked for and was granted a rehearing at which time evidence was taken. Thereafter on January 10, 1947, the Commission announced its decision upon rehearing and entered an order affirming its previous findings and award. It is this last order which is now brought before us for review.
The employer makes but two assignments of error: (1) That the evidence is insufficient to support the Commission's award based upon its findings to the effect that the injured employee sustained personal injuries in an accident arising out of and in the course of his employment. (2) That the evidence is likewise insufficient to support the finding that the employee was actually in the employ of said employer at the time he is alleged to have been injured.
No question is raised as to the extent of injury, the amount of the award, or the Commission's jurisdiction to enter the same provided he was an employee and the accident and injury arose out of and in the course of employment.
For more than a year prior to the accident in question the claimant had been in the employ of the Joe Tooley Produce Company as a truck driver and deliveryman. The normal summer working day extended from 6 a. m. until about 3 p. m. The accident in question occurred on August ...