Application of Henry S. BARRETT, Guardian of the Estates and Persons of Florence Louise Barrett, Sherwood Barrett, Larry Barrett, Orson Levi Barrett, Simone Barrett, Diana Barrett, Letitia Barrett, Sharon Barrett, Don Bryley Barrett, and Rebecca Ruth Barrett, Minor Children, Petitioner and Applicant. In the Matter of ESTATE of Marvin B. BARRETT, Deceased,
J. V. BARRETT, Defendant Employer, and The Industrial Commission of Arizona, Respondents.
Rehearing Denied Jan. 25, 1955.
[78 Ariz. 221] McKesson & Renaud and J. Gordon Cook, Phoenix, for petitioner.
Robert E. Yount, Phoenix, for respondent Industrial Commission. John R. Franks, Donald J. Morgan and Robert K. Park, Phoenix, of counsel.
TULLAR, Superior Court Judge.
By certiorari, section 56-972, A.C.A.1939, petitioner asks us to review an Industrial Commission award denying death benefits to dependent children.
The Commission made the following findings:
'1. That the deceased, Marvin B. Barrett, was, on or about the 17th day of February, 1952, engaged in his personal pursuits and that while so engaged and not in the course of his employment, died as a result of an automobile accident which said accident did not arise out of or in the scope of the employment of Marvin B. Barrett, as an employee of J. V. Barrett, defendant employer.
'2. That the applicants are not entitled to death benefits under the provisions of the Act, by virtue of these premises or by reason of the claim filed herein.'
The sole issue is whether these findings are reasonably supported by the evidence. This court does not weigh the testimony. The petitioner must show affirmatively his right to recover. Trett v. McElroy, 70 Ariz. 254, 219 P.2d 337. All reasonable inferences drawn from the evidence by the triers of the facts will be sustained on review. Phelps Dodge Corp. v. DeWitt, 63 Ariz. 379, 162 P.2d 605.
A detailed statement of the facts is necessary to show the problem and point to its solution.
Marvin Barrett, the deceased employee, had been working for the J. V. Barrett Contracting Company, the insured employer, for about a year prior to his death. Between 1932 and 1951, he had lived in South Carolina, where he was employed by [78 Ariz. 222] a seed company. In February, 1951, he and his family moved to Glendale, Arizona, where he immediately went to work for the Company as a carpenter. He was paid $2.22 1/2 per hour and, during the last six months preceding his death, worked forty-hour weeks about half the time and forty-eight hour weeks about half the time, always at the same hourly rate.
The Company was a family concern, J. V. Barrett, Leonard R. Barrett, his son, and W. Austin Danley, a half brother of the former, having started the business in 1947 as an equal partnership to build residences.
Later, for purposes of convenience, the business was put in the sole name of J. V. Barrett, but it continued, at all times, as a partnership.
During the time of the employment of Marvin Barrett, who was another half brother of J. V. Barrett, the Company was building homes in Phoenix, and plans were afoot to build 25 or 30 homes in Fredonia, and also to build some homes in Yuma where members of the family had other interests. It was contemplated that Leonard would take charge of the Fredonia project, and that Marvin would be made foreman in Yuma.
Organized in December, 1951, was Island Farms, a corporation created for the purpose of conducting a farming operation in Yuma County. Henry Barrett, who was a full brother of J. V., was president of this corporation, Leonard Barrett, W. Austin Danley, Gleason R. Sherwood and Howard L. Lamb were vice-presidents, and J. V. Barrett was secretary-treasurer. Marvin Barrett had no interest in this corporation.
On about February 12, 1952, Henry Barrett, who was in Yuma with Howard Lamb on Island Farms' business, telephoned J. V. Barrett, in Glendale, and told him that there was difficulty clearing title to the land the corporation planned to farm. J. V. said that he would come down on Saturday and bring the other officers of the corporation with him so that future plans could be decided. A day or two later J. V. told Danley of the proposed trip to Yuma, and Danley asked Marvin Barrett to accompany them. Marvin said that if it wasn't absolutely necessary he ...