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Carnes v. Industrial Commission

Supreme Court of Arizona

February 11, 1952

CARNES
v.
INDUSTRIAL COMMISSION et al

Rehearing Denied March 4, 1952.

Award set aside.

Laney & Laney, of Phoenix, for petitioner.

H. S. McCluskey, of Phoenix (Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel), for respondent Industrial Commission of Arizona.

Darrell R. Parker, of Phoenix, for respondent Agro Phosphate Co., a California corporation.

Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.

OPINION

Stanford, Justice.

Page 537

[73 Ariz. 265] On April 28, 1950, Elton Ernest Carnes, Jr. sustained fatal injuries from an accident arising out of and in the course of his employment. He left surviving him his widow, Edna Florence Carnes, petitioner, and three minor children. The accident was caused by an explosion which occurred while Carnes was welding a liquid fertilizer tank owned by the Arizona Agro Phosphate Company, an Arizona corporation, on its premises in Phoenix.

Petitioner duly filed her application for compensation with the Industrial Commission of Arizona. In due course a hearing was held and, on April 28, 1951, the commission entered its finding and award, denying compensation to the petitioner on the ground that decedent, at the time of his injury, was the employee of the Agro Phosphate Company, a California corporation. Upon rehearing, the commission handed down its decision affirming its prior award denying compensation.

For about three years prior to the date of the accident Carnes had been steadily employed in California by a California corporation known as the Agro Phosphate Company, working on liquid fertilizer tanks owned by it. The business of the California corporation, as well as that of the Arizona corporation, was the sale and [73 Ariz. 266] distribution of liquid fertilizer. The officers and controlling stockholders of both corporations were members of the Greening family, of California.

A few days before the date of the accident, Raymond Laine, the manager of the Arizona corporation, telephoned Gordon Greening, who was president of the California corporation, and also secretary-treasurer of the Arizona corporation, and asked Greening to loan Carnes to him to do some welding on tanks of the Arizona corporation which were in need of repair. During the previous two years it had been the custom of the Arizona corporation on occasion to borrow skilled employees from the California corporation. On all these occasions the employees would remain on the payroll of the California corporation, although the wages for the time they worked for the Arizona corporation and a proportionate share of withholding and social security taxes, together with a small amount for bookkeeping, would be charged to the Arizona corporation on an open account and later paid by the Arizona corporation. Carnes agreed to go to Arizona and do the work for the Arizona corporation, whereupon Greening, acting as secretary-treasurer of the Arizona corporation, drew a check for fifty dollars on the Arizona corporation in favor of Carnes, as expense money for his trip. Two years previous to this, Carnes, under the same arrangement, had worked for the Arizona corporation in Phoenix, building storage tanks under Laine's direction.

On April 27, 1950 Carnes arrived at the plant of the local company in Phoenix. He asked to see Laine, the manager, but the latter was out. When Laine returned to the plant he outlined the work he wanted done. He showed Carnes the tanks he wanted welded and where the leaks were in those tanks. Laine furnished Carnes a welding machine with which to work and had some of his men assist Carnes in preparing the tanks that were to be welded. Laine stayed after normal quitting time that evening and directed Carnes in his work until about 7 o'clock when they both quit for the day. The explosion which was fatal to Carnes took place the following evening. The tank on which Carnes was welding at the time of the explosion had developed a leak after Carnes had arrived on the job and Laine had asked Carnes to repair the same.

This appeal is from the award of the industrial commission denying petitioner's claim for compensation under the ...


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