Carrie L. WORTHINGTON, Widow of James Monroe Worthington, Jr., Petitioner,
INDUSTRIAL COMMISSION of Arizona, and Will H. Minor et al., Respondents.
Rehearing Granted Jan. 20, 1959.
[85 Ariz. 105] Westover, Mansfield, Westover & Copple, Yuma, and Lawrence Ollason, Tucson, for petitioner.
Robert K. Park, Phoenix, for respondent Industrial Commission; John R. Franks, Donald J. Morgan and James D. Lester, Phoenix, of counsel.
Little Horn Mining Company is a partnership periodically operating mining property in Yuma County. One Paul J. Lipscomb was a member of the partnership and James Monroe Worthington at times was employed by the partnership in the operation of its property when the mine was operated. It appears that on the morning of January 5, 1956, Lipscomb and Worthington made a trip to the mine in Lipscomb's car. The mine was not in operation at this time. On the return trip as a result of an automobile accident both were killed.
Carrie L. Worthington, widow of Worthington and petitioner herein, as administratrix of his estate filed a wrongful death action against the executrix of the estate of Lipscomb claiming that he was negligently operating his car and that Worthington was his guest and passenger and met his death by reason of such negligence. The Lipscomb estate answered denying liability and affirmatively defending upon the ground that at the time of his death Worthington (hereinafter designated decedent) was an employee of Lipscomb and his associates doing business as the Little Horn Mining Company, which carried workman's compensation insurance, and the accident and resultant death arose out of and in the course of his employment. The case was called for trial on January 3, 1957. The parties advised the court a [85 Ariz. 106] settlement had been negotiated and petition was filed by petitioner for authority to compromise the suit for the sum of $7,000. The court's authority was secured, payment made, release issued and the suit dismissed. On the same day of dismissal, petitioner filed application for death benefits with the Industrial Commission claiming that her deceased husband was an employee of Lipscomb and was injured by accident arising out of and in the course of his employment. After rehearing the application was denied.
Petitioner's claim for death benefits is founded upon the asserted fact that decedent was employed by Lipscomb as a member of a partnership doing business as the Little Horn Mining Company and the fatal accident arose out of and in the course of such employment. The wrongful death action against the personal representative of Lipscomb must be founded upon the fact that decedent was not employed by Lipscomb at the time of the accident for the reason that such an action cannot be maintained against an employer carrying workman's compensation for an accident compensable under the provisions of the workman's compensation law (with certain exceptions not applicable here). If decedent was in fact an employee of Lipscomb, the widow as personal representative had no cause of action for damages. Section 23-1022, A.R.S.; Corral v. Ocean Acc. & Guarantee Corp., Ltd., 42 Ariz. 213, 23 P.2d 934. She had one of two possible remedies: If he was an employee she must claim under the workman's compensation law; if he was not an employee she may maintain her wrongful death action. She cannot successfully do both. In effect the bringing of the wrongful death action amounts to an assertion and representation that decedent was not an employee at the time of the accident and the compromise of that action and acceptance of the $7,000 damages is necessarily based on the validity of that assertion and representation. She cannot now be allowed to say she made the recovery of $7,000 on a false basis. Russell v. 231 Lexington Ave. Corp., 266 N.Y. 391, 195 N.E. 23, 98 A.L.R. 413.
UDALL, C. J., and PHELPS and JOHNSON, JJ., concur.
STRUCKMEYER, Justice (dissenting).
The decision in this case is predicated upon an assumption that petitioner, as the surviving spouse of the decedent Worthington, had a choice of two positions: If Worthington was an employee of Lipscomb, she could only claim under the Workmen's Compensation Law; but if Worthington was not an employee of Lipscomb, she could only sue his estate for wrongful death.
The assumption does not recognize that there are instances where an employee is [85 Ariz. 107] allowed to sue his fellow employee and still recover on a claim under the Workmen's Compensation Law against the actual employer. Illustrations of the application of this principle to individuals and corporations are numerous, but the application to partnerships is neither well developed nor a matter of complete agreement. In at least one jurisdiction, a partner when working for a partnership is not an employer within the meaning of the Workmen's Compensation Law; so that a partner who is acting on behalf of the partnership is at the same time an employee of the partnership. The individual partner, the actual tort-feasor, is the party liable in damages for wrongfully injuring a fellow employee. Monson v. Arcand, 239 Minn. 336, 58 N.W.2d 753.
In the action for wrongful death brought by Worthington's widow, no reference was made in the complaint to Worthington's status as an employee either of Lipscomb or of the partnership. It was alleged that Worthington was riding as a 'guest and passenger' in an automobile being operated by Lipscomb at the time of the accident. I am unable to find in this allegation an assertion which is inconsistent with a claim of employment by the Little Horn Mining Company. Moreover, there is evidence that the partnership was intended to be the employer. The Little Horn Mining Company as the named policy holder paid premiums and filed payroll reports with the Industrial Commission o Arizona, and for the day on which the accident occurred, filed a payroll report which covered Worthington's services to the partnership.
I recognize that there is authority contrary to the Monson case; see for example, Reed v. Industrial Accident Commission, 10 Cal.2d 191, 73 P.2d 1212, 114 A.L.R. 720. However, a discussion of the respective merits of the two lines of authority is unnecessary. The point here is that the
widow could have filed her lawsuit predicated on the legal premise that her husband was an employee of the partnership and that the relationship of Lipscomb and Worthington to each other at the time of the accident was that of fellow employees, both acting in the partnership's behalf. Based on such a legal premise, the widow, if she recovered both in an action at law against Lipscomb, the wrongdoer, and on a claim under the Workmen's Compensation ...