Butler v. Industrial Commission of Arizona

• Decision Date: 16 November 1937
• Docket Number: Civil 3917
• Citation: 73 P.2d 703,50 Ariz. 516
• Parties: WALTER J. BUTLER, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, SAM W. PROCTOR, and L. C. HOLMES, as Members of and Constituting the Industrial Commission of Arizona, NACE MUNICIPAL STADIUM, a Corporation, and RIVERSIDE AMUSEMENT PARK COMPANY, a Corporation, Respondents
• Court: Arizona Supreme Court

73 P.2d 703

50 Ariz. 516

WALTER J. BUTLER, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, J. NEY MILES, SAM W. PROCTOR, and L. C. HOLMES, as Members of and Constituting the Industrial Commission of Arizona, NACE MUNICIPAL STADIUM, a Corporation, and RIVERSIDE AMUSEMENT PARK COMPANY, a Corporation, Respondents

Civil No. 3917

Supreme Court of Arizona

November 16, 1937

APPEAL by Certiorari from an award of the Industrial Commission of Arizona. Award set aside and case remanded.

Messrs Armstrong, Kramer, Morrison & Roche, for Petitioner.

Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Respondents.

OPINION

LOCKWOOD, J.

This is an appeal by Walter J. Butler, hereinafter called petitioner, from an award of the Industrial Commission denying him compensation. The facts upon which the award is based are not in dispute, and may be stated as follows:

Nace Municipal Stadium is a corporation which operates an athletic park near the city of Phoenix, commonly known as Nace stadium, and which we shall hereafter refer to as the stadium company. Riverside Amusement Company is a corporation which operates an amusement park near the same city, and which we shall hereafter call the park company. Harry L. Nace is a very heavy stockholder in both corporations, and at the times involved in these proceedings was the general manager of both companies, having almost unlimited authority over the employment of help and the direction of such help in the performance of whatever duty he thought necessary. The stadium and the park are about one-half mile apart, and the only reasonable and practical means of getting from one to the other is on South Central Avenue, a public highway. Petitioner was employed by Nace on behalf of the stadium company; his hours were unlimited, he being subject to call during any part of the day or night, and living at the stadium, where he acted as groundskeeper and night watchman, and, in general, did anything necessary in regard to its care and upkeep. The stadium company paid him $75 per month straight salary for his work. He also was employed by Nace, in his capacity as general manager of the park company to perform various services there. The park company carried him on its pay roll, but paid him by the hour for such work as he performed for it during the day. During the summertime he was also paid $2 every Saturday night; his particular duties at night being the proper parking of cars during dances held at the park, though he was also required to do any other work necessary in assisting about the park during that time. After the dances were over, it was his duty to assist in checking up the accounts and, as watchman, to protect the cashier while the latter was arranging for the proper care of the money received during the evening. His duties at the park stopped when the last auto left, which was usually about 3:30 to 4 A.M. He was at all times under the direction of Nace as to the duties that he should perform both for the stadium company and for the park company, and with the latter's knowledge, approval, and instructions passed from the park to the stadium, and the stadium back to the park, over South Central Avenue, whenever his duties at either place called upon him to make the change. On Saturday, May 8th, there was, as usual, a dance at the park, and the next day there were to be one or more softball games at the stadium. The grass on the playing field there was not in very good condition, and petitioner had been instructed specifically by Nace that he was to do everything he could to hurry it along so that it would be in good shape as soon as possible, and especially to see that it was well watered. In order to do this, to the knowledge of Nace it was necessary that he go from time to time during the evening from the park to the stadium in order to change the hoses and sprinklers which were running at the stadium, and then to return to the park to continue with his duties there until such time as, in his opinion, the water again needed changing, thus passing back and forth through the evening, as was required, until the money at the park had been checked and safely cared for and all the parked autos had departed, when he would return to the stadium and remain there until again called for duty at the park. Some time between 1 and 2 o'clock in the morning of May 9th, and while dancing was still going on, petitioner started for the stadium to change the water, informing the cashier at the park that he would return as soon as he had done this, and finish his duties at the park. While he was on his way to the stadium for the purpose above stated, walking on South Central Avenue, he was struck by a hit-and-run driver, and very seriously injured. It is agreed that during the month preceding his injury he had received as compensation for his services from the stadium company the sum of $75, and from the park company $48.37. He made application for compensation under the act (Laws 1925, chap. 83, as amended) to the commission, which was also the insurance carrier for both the stadium company and the park company, and the commission, after hearing all the facts, concluded that the injury from which he suffered did not arise out of or during the course of his employment for either the stadium company of the park company, and denied him compensation.

It is contended by the commission, in substance, that where a man is employed under two separate contracts of hire by two separate corporations, each contract requiring a performance of duties independent of the duties required under the other contract, an injury by accident sustained by the employee when he leaves one place of employment for the purpose of taking up his duties at another one, and in so doing passes over a public highway and is injured thereon, does not occur in the due course of his employment for either employer, and he is not entitled to any compensation whatever.

It is the position of the petitioner that when one is employed by two different employers, subject to call by either of them at any hour of the day or night, and the conditions of his work necessarily require that he travel back and forth over a public highway between the two places of employment in order to carry it on successfully (such fact being well known to and approved by both employers), he is engaged in the business of both masters while so traveling back and forth, and any injury received on such highway, under those circumstances, arises out of and in the due course of the dual employment, and his disability is compensable.

We have held in the case of Corral v. Ocean Accident & Guarantee Corp., 42 Ariz. 213, 23 P.2d 934, 936, as follows:

"The purpose of the compensation act, as has been repeatedly stated, is as much as possible, to dispense with turmoil, contention, and litigation between employer and employee, and to place upon business the burden of caring for employees injured, or, when killed, their dependents. Our compensation law is replete with this thought."

And since the act is wholly remedial, it should be given a liberal construction to accomplish the purpose intended. Federal Mut. L. Ins. Co. v. Industrial Com., 31 Ariz. 224, 252 P. 512; Ocean Acc. & Guar....