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State ex rel. Industrial Commission v. Reese

Supreme Court of Arizona

December 1, 1952

STATE ex rel. INDUSTRIAL COMMISSION
v.
REESE et al

Writ of mandamus made peremptory.

H. S. McCluskey of Phoenix, for petitioner, Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel.

Richey & Herring, of Douglas, for respondent, Thomas E. Reese.

Conner & Jones, of Tucson, for respondent Sulphur Springs Valley Cooperative.

De Concini, Justice. Stanford, Phelps and La Prade, JJ., concur. Udall, C. J., concurs in the result.

OPINION

De Concini, Justice.

[74 Ariz. 426] Respondent Reese was injured by an accident arising out of and in the course of his employment on August 20, 1949, while in the employ of the Inland Trading & Construction Company, a copartnership. He filed a claim with the Industrial Commission under the Workmen's Compensation Act and was awarded $ 1114.42 as compensation, and $ 12,855.65 was paid out to others for "accident benefits" on respondent's behalf. That on or before April 15, 1951, Reese filed his election of remedy to sue a third party and take any deficiency he might suffer from the commission. On or about April 4, 1951, respondent filed suit for damages against the alleged negligent third party, Sulphur Springs Valley Electrical Cooperative, a corporation, hereafter referred to as the third party defendant.

The third party defendant filed its answer denying liability on several grounds. The petitioner Industrial Commission, hereafter referred to as the commission, filed

Page 1002

a complaint in intervention. The trial court in the county of Cochise where the action was pending denied the commission's right to intervene and made certain findings of fact and conclusions of law.

The commission filed an original petition for writ of mandamus in this court, and an alternate writ was issued. The respondent hereinafter referred to as Reese, and the third party defendant as well as the commission have fully briefed the matter. Counsel for Reese and the commission seek to relitigate various issues settled in the Pressley case on rehearing -- Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011, hereafter called the second Pressley case; and also the cases of Industrial Commission v. Nevelle, 58 Ariz. 325, 119 P.2d 934 and Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 300 P. 958. Counsel for third party defendant supports the commission in some of its views and disagrees with others.

[74 Ariz. 427] Basically the same issues are tendered here, as were in the second Pressley case, supra; and in addition thereto there is also raised the questions of Election, Subrogation and Intervention which were settled in the last Pressley case -- Industrial Commission v. Pressley (Tucson Gas & Light Co.) 74 Ariz. 412, 250 P.2d 992.

We deem it unnecessary to repeat in detail what we said in the two Pressley cases above referred to, except to say that we ...


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