The awards are affirmed.
V. L. Hash and Robert C. Moore, of Phoenix, for petitioner.
H. S. McCluskey, Phoenix, for respondents Industrial Commission of Arizona; Robert E. Yount, Phoenix, of counsel.
Darrell R. Parker, Phoenix, for respondent Marianna H. Gonzales.
Guynn & Twitty, Phoenix, for intervener.
Udall, Justice. Stanford, Phelps, and De Concini, JJ., and Thomas J. Croaff, Superior Court Judge, concurring.
Note: Chief Justice LaPRADE being ill at the time the case was submitted, Judge THOMAS J. CROAFF, Superior Judge, was called to sit in his place.
[69 Ariz. 195] The ultimate question here presented is who is entitled to the "death benefits" resulting from the demise of Robert H. Gonzales who was instantly killed on February 11, 1947, in an accident arising out of and in the course of his employment as a miner for the Magma Copper Company at Superior.
To obtain a clearer understanding of the issues raised we set forth a resume of the facts developed at the hearings in the instant case, stating same in the light most favorable to a sustaining of the awards made by the Commission. Robert H. Gonzales and Margaret Hughes Gonzales were married on December 11, 1939. No children were born as the issue of this marriage. Katherine Hughes on July 23, 1941, gave birth to Billy Gene Hughes out of lawful wedlock. The record does not disclose the whereabouts or residence at any time of the natural father and his rights, if any, are not involved in this legal controversy. Within five to eight days after birth, at the direction and with the consent of the natural mother, said child was delivered to Margaret Hughes Gonzales, a sister of the mother, for adoption. Margaret Hughes Gonzales was then residing with her husband (the decedent) at their home in Benson, Cochise County, Arizona. The baby was actually delivered to the Gonzales home by Emma Hughes, another sister, and one Marjorie White, a representative of the Pima County Board of Social Security and Welfare. Thereafter on April 11, 1942, Mr. and Mrs. Gonzales filed a petition with the Superior Court of Pima County asking leave to adopt the minor, Billy Gene Hughes. The usual notice was given and preliminary investigations made, after which a hearing was had, and on May 17, 1943, the Pima County Superior Court entered an interlocutory order of adoption. The petitioners took no steps during the lifetime of Robert H. Gonzales to have entered a final decree of adoption of said minor child. However after the death of decedent a petition was filed in said court by Margaret H. Hughes seeking issuance of a final order of adoption through the entry of a nunc pro tunc order. This effort failed as, on May 15, 1948, the court denied the petition. The Gonzales family, with the baby, moved to Phoenix late in 1943. Marital troubles developed and on January 30, 1945, the Superior Court of Maricopa County entered a decree of divorce dissolving the bonds of matrimony and restoring to Mrs. Gonzales her maiden name of [69 Ariz. 196] Margaret H. Hughes. This judgment recited that there was no issue of the marriage and no mention is made of the minor, Billy Gene Hughes. The latter, however, remained in the custody and control of Margaret H. Hughes, and her testimony, which stands uncontradicted, is to the effect that decedent, Robert H. Gonzales, voluntarily continued to support the minor by payments to her of the sum of $ 50 each and every month until the date of his death.
Magma Copper Company, the defendant employer, was insured against liability for the payment of accident benefits and compensation under the Arizona Workmen's Compensation Law by the Industrial Commission of Arizona as insurance carrier. There were two claimants for death benefits provided for under section 56-953, A.C.A.1939 -- Marianna H. Gonzales, mother of decedent, who asked that she, as a partial dependent, be awarded compensation, and Margaret Hughes (divorced wife of decedent) who, while asking no relief in her own right, filed a claim for and in behalf of Billy Gene Hughes, aged six years, asserting that said minor was an adopted child of, as well as dependent upon, decedent. Various hearings were held and on June 21, 1948 the Commission found that Billy Gene Hughes was not legally adopted by decedent, Robert H. Gonzales, as no final order of adoption had been entered and therefore it held said minor was not ...