COYNER et al.
INDUSTRIAL COMMISSION et al.
[77 Ariz. 211] Cox & Cox, Phoenix (Williby E. Case, Jr., Harry T. Goss and Rudolph Mariscal, Phoenix, of counsel), for petitioners.
Donald J. Morgan, Phoenix (John R. Franks, Robert E. Yount, and Robert K. Park, Phoenix, of counsel), for respondent, Industrial Commission of Arizona.
PHELPS, Chief Justice.
This is a review by certiorari of an award by the Industrial Commission denying widow's and dependants' claims for compensation for the injury and death of petitioners' husband and father by accident arising out of and in the course of his employment.
Jack D. Coyner, now deceased, husband of petitioner Elizabeth Coyner, and father of petitioners Catherine C. and Jack David Coyner, minor children of the couple, was engaged in the crop dusting business by the use of airplanes and was in the employ of Coyner Crop Dusters, a corporation. Decedent and petitioner Elizabeth Coyner as husband and wife were each the owners of 49 shares of the capital stock of the corporation out of a total issue of 100 shares.
Previous to the date of the accident and on, to wit, June 12, 1951, decedent had filed with the commission his rejection of the terms of the Arizona Workmen's Compensation Law. On July 17, 1952, Jack D. Coyner by Elizabeth Coyner, his wife, filed a claim for workmen's compensation with the Industrial Commission. On July 21
the Coyner Crop Dusters, a corporation, reported to the commission its first report of injury to Jack D. Coyner and revealed that he had succumbed on July 18, 1952.
On July 7, 1953, petitioner Elizabeth Coyner on behalf of herself and her minor children filed with the commission her election to pursue her remedy against a third party whose negligence, it is claimed, caused the death of decedent. In that election she expressly rejected the benefits of the Workmen's Compensation Act except insofar as she was entitled thereto under the provisions of sections 56-949 and 56-950, A.C.A.1939.
On July 29 following, the commission made and entered its findings and award [77 Ariz. 212] denying petitioners' claim upon the ground that her husband, Jack D. Coyner, had made a valid rejection of the benefits of the Workmen's Compensation Act on July 12, 1951, and that said rejection was and is binding upon all of the claimants. Petition for a rehearing was granted and thereafter on November 9, 1953, the commission affirmed its findings and award of July 29, 1953.
Petitioner claims the commission erred in finding (1) that decedent made a valid rejection; (2) that claimants herein are barred by said rejection; and (3) in finding that it lacked jurisdiction to proceed.
These assignments resolve themselves into but one question of law: May the dependents of an employee recover compensation from the Industrial Commission under the provisions of the Workmen's Compensation Law where the employee prior to his injury rejected the benefits of the law?
That the rejection of the benefits of the Workmen's Compensation Act is valid and binding upon decedent is too clearly expressed in the constitution and in the statutes of the state and has been so frequently held to be the law by this court that citation of authorities would be superfluous. We held in Behringer v. Inspiration Consol. Copper Co., 17 Ariz. 232, 149 P. 1065, that unless the employee did make an election of remedies during his lifetime the personal representatives of the decedent could not maintain an action for compensation based upon decedent's rights thereto. The rights of employees are based upon contract and consent, Behringer v. Inspiration Consol. Copper Co., supra, while the rights of the dependents are created by statute. However, before a statutory right to compensation can arise in favor of dependents there must exist a right to compensation in favor of the employee under the Workmen's Compensation Act at the time of his injury. Corral v. Ocean Accident and Guarantee Corporation, 42 Ariz. 213, 23 P.2d 934, 937. We said in the above case that:
'If an employee is killed and has not during his lifetime rejected the compensation law, his rights and those of his dependents are conclusively and irrevocably fixed by the compensation law and must be administered by the Industrial Commission. * * *'
The court further said:
'While the contract of insurance indemnifies the employer against loss by reason of liability imposed upon him by law for damages on account of injuries to employees, wherever sustained in the United States or Canada, it was evidently intended that such remedy would be available to the employee or his dependents only in the absence of compensation insurance, or where the ...