WEAVER et al.
MARTORI et al
Rehearing Denied September 21, 1949.
Appeal from Industrial Commission.
Proceeding under the Workmen's Compensation Act by Robert R. Weaver, guardian for Eugene Chapanar, a minor, also known as Eugene Robert Comanitz, claimant, opposed by Edward Martori and others, constituting Martori Bros. Distributors, employers. To review an award of the Industrial Commission denying compensation, the petitioner appeals by certiorari.
Lewkowitz & Wein and Charles C. Stidham, Phoenix, for petitioners.
H. S. McCluskey, Phoenix, Robert E. Yount, Phoenix, of counsel, for respondents.
Udall, Justice. LaPrade, C. J., and Phelps and De Concini, JJ., concurring. Stanford, Justice (dissenting).
[69 Ariz. 46] Petitioner Robert R. Weaver, as guardian for Eugene Chapanar (also known as Eugene Robert Comanitz), a minor, brings before us for review an award of The Industrial Commission of Arizona denying compensation to said minor. The parties will hereafter be referred to as petitioner, minor, and Commission, respectively.
The injury not being disputed, the sole assignment of error is that the Commission erred in finding that the minor was not employed by respondent Martori Bros. at the time of the accident. Some of the propositions of law advanced by the parties demand a recitation of the facts, particularly the steps taken by the minor's representatives to secure damages or compensation for the minor.
The accident occurred in Phoenix on Sunday, July 9, 1945 at 3 p. m. at the Isabell-Hartner Packing Shed, which shed was being operated by the Martori Bros. Distributors, processors of vegetable products, hereafter referred to as the respondent. The minor, who was eleven years old at this time, was engaged in placing, or "kicking" cantaloupes onto a conveyer to be conveyed to a bin. He slipped and fell into the conveyer, and by reason thereof suffered a double fracture of the middle of [69 Ariz. 47] the left tibia, a fracture of the right tibia, and abrasions on both legs.
The Superior Court of Maricopa County on September 24, 1945, entered an order appointing Victoria Chapanar, the mother of said minor, as his guardian ad litem, and upon the same date she filed a complaint against the respondent for compensatory damages in the sum of $ 25,000 and medical expenses. The case was removed to the Federal court on respondent's motion and the Commission was later made a party to the action. Following our decision in the case of S. H. Kress & Co. v. Superior Court of Maricopa County,66 Ariz. 67, 182 P.2d 931, 936, which held that the Workmen's Compensation Act afforded the exclusive remedy for injuries resulting to an illegally employed minor, a motion for summary judgment which had been filed by the respondents previously was granted, and an order of dismissal was entered by the court. The Commission suggests that the filing of this suit constituted an election of ...