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Thomas v. Industrial Commission of Ariz.

Supreme Court of Arizona

March 16, 1960

William Arthur THOMAS, minor child of Horton F. Thomas, deceased, Petitioner,
INDUSTRIAL COMMISSION OF ARIZONA, and Tucson Gas, Electric Light and Power Company, Respondents.

[87 Ariz. 239] Lawrence Ollason, Tucson, for petitioner.

C. E. Singer, Jr., Phoenix, for respondent Industrial Commission of Arizona, Donald J. Morgan, James D. Lester, Frances M. Long, and Edward E. Davis, Phoenix, of counsel.

UDALL, Justice.

Review by certiorari of an award of the Industrial Commission of Arizona denying death benefits to petitioner William Arthur Thomas, minor son of a deceased employee.

Decedent Horton F. Thomas was, at the time of his death, an employee of the Tucson Gas, Electric Light and Power Company. He died as the result of an injury arising out of and in the course of his employment, on August 1, 1955. No dependents appeared to claim death benefits under the Workmen's Compensation Law, hence on August 14, 1956, the Industrial Commission entered its award and findings, declaring that decedent left no person surviving him and dependent upon him for support, and directing the payment of $1,150 to the State Vocational Rehabilitation Fund.

Some two years thereafter the matter was reopened to allow consideration of the instant claim. The Commission had received from petitioner his Dependent's Claim for Compensation, accompanied by an affidavit in support thereof. A hearing was held by the Commission, the record therein consisting of petitioner's former claim (on the standard form provided by the Commission), two affidavits by petitioner, and one by his mother.

The facts presented can be summarized as follows: Petitioner, the natural son of

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decedent, was sixteen years of age at the time of the fatal injury. Petitioner and his [87 Ariz. 240] mother had been deserted by decedent 1949, at which time they were living in California. Neither petitioner nor his mother had any direct communication with decedent at any time thereafter. The mother and son returned to their family home in Tennessee, where, in 1953, Mrs. Thomas brought suit for divorce against her husband on grounds of abandonment. Since decedent's whereabouts were unknown, service upon him in this action was had by publication. The Tennessee court granted a divorce decree. Because decedent was not personally subject to the jurisiction of the court, the decree made no provision for support or maintenance.

In the years following the desertion, petitioner continued to live with his mother, who, to the best of her ability, provided for his support. Petitioner himself took employment of various kinds, and the two were more or less self-sufficient. From time to time money orders in various amounts were sent by decedent to his mother (petitioner's grandmother), who also resided in Tennessee. It is not clear from the record whether any part of these remittances ever found their way into the hands of petitioner or his mother. Petitioner's grandmother was unwilling or unable to disclose the whereabouts of her son, revealing only that he was, at various times, in Alaska, Okinawa, and Japan. Petitioner had no way of knowing when or from where such payments would come, or whether any portion thereof would be turned over to him; and he had no reasonable expectation of their continuing. This was the situation existing on August 1, 1955, the day of the fatal injury to decedent in Tucson.

On the basis of this record the Industrial Commission entered its Findings and Award denying compensation to petitioner on grounds that he 'was not dependent upon deceased for support on August 1, 1955.' An application for rehearing was duly filed by petitioner. The only significant addition to the record upon rehearing was a further affidavit by petitioner in which he stated:

'The only support that I received was what I actually earned and what my mother earned. I received no support from anyone else. My mother did not remarry until March 11, 1955, nor was I a member of any other household besides that consisting of my mother an myself.

'Although my mother and I were able to supply to ourselves the necessities of life, we by no means were able to live in relation to my father's class and position in life.'

Thereafter the Commission entered its decision on rehearing and order affirming previous findings and award. We granted certiorari.

[87 Ariz. 241] In Ocean Accident & Guarantee Corp. v. Industrial Commission, 32 Ariz. 54, 63, 255 P. 598, 601, this Court said:

'* * * the provision for death benefits was placed in the Workmen's Compensation Act for the purpose of compensating dependents, * * *, for the loss sustained by them as a result of the death of an employee, * * *.'

If the death of the employee results in no financial loss to the survivors, then they are not entitled to ...

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