Elijah Allen, of Mesa, L. J. Cox, Jr., and Cox, Lockwood & Lockwood, of Phoenix, attorneys for petitioner.
H. S. McCluskey, Phoenix, attorney for respondent Industrial Commission of Arizona. Robert E. Yount, Phoenix, of counsel.
Snell, Wilmer, Walsh, Melczer & Beauchamp, of Phoenix, Kramer, Morrison, Roche & Perry, of Phoenix, Stockton & Karam, of Phoenix, Westover & Mansfield, of Yuma, Stidham & Udall, of Phoenix, Jennings, Strouss, Salmon & Trask, of Phoenix, Whitney, Ironside & Whitney, of Phoenix, Ellis & Walker, of Eloy, Anderson & Smith, of Safford, Reed, Wood & Mangum, of Coolidge, amici curiae.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[69 Ariz. 139] Petitioner Jose Madrigal seeks annulment of an award made by the respondent commission disallowing his claim for compensation under its policy of insurance issued
to the A. B. C. Produce Company, respondent employer. The lawfulness of the commission's action in reforming its policy of insurance excluding petitioner from coverage after he had suffered an injury is the decisive question presented.
There is no material conflict in the evidence. Petitioner was employed by the produce company as an agricultural worker not engaged in the use of machinery. During the noon hour on the 21st day of April, 1947, petitioner and three fellow employees were eating their lunch under a trailer-truck then situated on the employer's premises, when without warning the truck driver started the truck causing the rear wheel of the trailer to run over petitioner thereby severely injuring him. It is conceded that petitioner sustained an injury arising out of and in the course of his employment within the rules laid down by this court in Pacific Fruit Express Co. v. Industrial Commission, 32 Ariz. 299, 258 P. 253, 55 A.L.R. 975; Goodyear Aircraft Corp v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511; and Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624.
The employer made no formal report of the injury, and it was not until July 10, 1947, that petitioner filed his first claim for compensation. On July 23, 1947, when the claim was first called to the attention of Byron F. Hunter, manager of the commission's underwriting department, he wrote the respondent employer calling attention to a claimed mutual mistake in the issuance of the policy and enclosing a retroactive [69 Ariz. 140] endorsement purportedly excluding all farm labor from coverage.
Petitioner filed an amended claim for compensation on February 5, 1948. A hearing was then had, the claim was denied, and the file closed. Thereafter a rehearing was granted, testimony was taken, and on July 6, 1948, the commission affirmed its previous order denying compensation. Petition for this review followed.
From the viewpoint of the commission the uncontradicted testimony of Mr. Hunter best explains how the alleged mistake occurred. "Q. What prompted the writing of that letter and the writing of that endorsement? A. Apparently there are two reasons. In the first place the policy itself is apparently issued in error or is inconsistent with the application. In the application for insurance which is signed by the company in answer to question 13, 'is it the intention of the employer to employ agricultural workers or domestic servants, employees engaged in household or domestic service at employer's residence' the answer is, 'No'. Then continuing this item 13, 'if so, is insurance coverage for such employees desired?' the answer is blank. In spite of that we go ahead and issue the policy to fully cover farm labor under our classification 0006 and in addition issue an all-inclusive endorsement as to employees under farm and/or ranch operations, including contract workers. As we received the payroll reports of the employer we noted that they fail to report contract or any other employees under classification 0006, farm and/or ranch labor, and consequently no premium is paid thereon. The file shows that after receipt of seven and a half months of payroll reports with no farm and/or ranch labor we re-checked the file and reformed it by our letter of July 23, and endorsement countersigned the same date." The witness further testified that he had received no application from the company to change the policy in any way; that he had no knowledge of ...