Worthington v. Industrial Commission

WINDES, Justice.

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 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.

Award affirmed.

UDALL, C. J., and PHELPS and JOHNSON, JJ., concur.