Casson v. Industrial Commission

• Decision Date: 28 August 1975
• Docket Number: No. 1,CA-IC,1
• Citation: 539 P.2d 189,24 Ariz.App. 385
• Parties: Patricia Ann CASSON, widow, William L. Casson, Deceased, Petitioner and Cross-Respondent, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, City of Kingman, Respondent Employer and Cross-Petitioner, State Compensation Fund, Respondent Carrier and Cross-Petitioner, Citizens Utilities, Respondent Employer. 1173.
• Court: Arizona Court of Appeals

Page 189

539 P.2d 189

24 Ariz.App. 385

Patricia Ann CASSON, widow, William L. Casson, Deceased, Petitioner and Cross-Respondent, v. The INDUSTRIAL COMMISSION of Arizona, Respondent City of Kingman, Respondent Employer and Cross-Petitioner State Compensation Fund, Respondent Carrier and Cross-Petitioner Citizens Utilities, Respondent Employer.

No. 1 CA-IC 1173.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 28, 1975.

[24 Ariz.App. 386] Evans, Kitchel & Jenckes, P.C., by Robert R. Mills, David L. Beaugureau, Phoenix, for petitioner and cross-respondent.

Greg L. Folger, Chief Counsel, The Industrial Commission of Ariz., Phoenix, for respondent.

Lewis & Roca by R. Kent Klein, Robert K. Park, Chief Counsel, State Compensation Fund, Phoenix, for City of Kingman and State Compensation Fund.

OPINION

NELSON, Presiding Judge.

On July 5, 1973, a tragic fire and explosion took place in Kingman, Arizona, claiming several lives and leaving many with severe injuries. William L. Casson, the deceased husband of the petitioner herein, Patricia Ann Casson (Casson), was one of the victims. He was killed while attempting to extinguish the fire when a railroad tank car exploded.

The petitioner and cross-petitioner present two questions to us. First, does the evidence support the hearing officer's finding that William Casson was killed as the result of an accident arising out of and occurring in the course of his employment with the Volunteer Fire Department of the City of Kingman as opposed to his regular employment with Citizens Utilities Company (Citizens), and secondly, if he was an employee of the City of Kingman at the time of the tragedy, was his average monthly wage properly found by the hearing officer?

We find that William Casson was killed as the result of an accident arising out of and occurring within the course of his employment with Citizens and therefore must set aside the award of The Industrial Commission of Arizona. Because of this resolution of the first issue before us, we do not decide the propriety of the average monthly wage which was set for Casson as a Captain in the Kingman Volunteer Fire Department.

Recognizing, as we must, that this Court reviews the factual record of The Industrial Commission of Arizona in a light most favorable to sustaining the award, Micucci v. The Industrial Commission of Arizona, 108 Ariz. 194, 494 P.2d 1324 (1972); resolves all conflicts in favor of upholding the award, Malinski v. The Industrial Commission of Arizona, 103 Ariz. 213, 439 P.2d 485 (1968); and will not disturb an award if it is reasonably supported by the evidence, In re Estate of Bedwell, 104 Ariz. 443, 454 P.2d 985 (1969), we still must set aside this award. The evidence in this case is essentially not conflicting and there is only one possible inference to draw from that evidence, Gronowski v. The Industrial Commission of Arizona, 81 Ariz. 363, 306 P.2d 285 (1957): William L. Casson was killed as a result of an accident arising out of and taking place within the course and scope of his employment with Citizens Utilities Company.

While it appears that the hearing officer made a factual finding which should have inevitably led to the proper legal and factual conclusion regarding Casson's employment, he confused the nature of the general business of a utility company with Casson's particular job responsibilities therein, and thereby erred in his result.

Finding #2 is clearly correct:

'2. The evidence indicates that the deceased was a member of the Volunteer Fire Department not only with the permission of his superiors in the Citizens Utilities Company, But at their request for the protection and preservation of company property, occasionally subject to fire damage, as well as for public relations aspects. The deceased had experience and expertise as a power linesman and his services often were utilized during fires to protect fireman (sic) from falling power lines, to disconnect transformers and electrical equipment, and other functions consistent with his experience.' (Emphasis supplied)

Finding #4 is where the hearing officer confused the general business of a utility company with the individual responsibilities assigned to Casson:

'4. Although the deceased in the instant case was not in a prohibited location nor performing a prohibited activity, it is considered that the benefits to the Citizens Utilities Company was (sic) only incidental to his activities as a volunteer fireman, and that the incident or explosion which resulted in his death did not arise from a source within or because of a risk inherent in his employment as a manager of Citizens Utilities Company. Accordingly, decedent's death was not caused by an injury 'arising out of' the deceased's employment with the Citizens Utilities Company. In the case of City of Phoenix v. Industrial Commission (104 Ariz. 120, 449 P.2d 291 (1969)), cited in Royall, supra (Royall v. The Industrial Commission of Arizona, 106 Ariz. 346, 476 P.2d 156 (1970)), the court stated:

"The causative danger must be peculiar to the work (. . .) It must be incidental to the character of the business and not independent of the relation of master and servant. (. . .) It must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.' (104 Ariz. at 123 (449 P.2d 291)).

'An exploding propane gas tank is not considered to be a risk inherent in deceased's employment with Citizens Utilities Company or to have flowed from a source within or as a natural consequence of this employment.'

In general terms, that statement of the law and the general utility business as the lay public might view it is correct. The evidence is ...