Goodyear Aircraft Corporation, Arizona Division v. Gilbert

• Court: Arizona Supreme Court
• Writing for the Court: Udall, Judge.
• Citation: Goodyear Aircraft Corporation, Arizona Division v. Gilbert, 65 Ariz. 379, 181 P.2d 624 (Ariz. 1947)
• Decision Date: 26 May 1947
• Docket Number: 4951
• Parties: GOODYEAR AIRCRAFT CORPORATION, ARIZONA DIVISION, v. GILBERT et al

181 P.2d 624

65 Ariz. 379

GOODYEAR AIRCRAFT CORPORATION, ARIZONA DIVISION, v. GILBERT et al

No. 4951

Supreme Court of Arizona

May 26, 1947

Certiorari from Industrial Commission.

Proceeding under the Workmen's Compensation Act, Code 1939, § 56-901 et seq., by Phillip Linsay, claimant, opposed by the Goodyear Aircraft Corporation, Arizona Division, a corporation, employer, to recover compensation for injuries sustained by claimant while making a personal souvenir in employer's plant. To review an award in favor of the claimant by Ray Gilbert and others, as members of and constituting the Industrial Commission of Arizona, the employer brings certiorari.

Award set aside.

Moore Romley & Roca, of Phoenix, for petitioner.

H. S McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for respondent Industrial Commission.

Minne &amp Sorenson, Charles N. Ronan, William H. Burrus and Kenneth C. Chatwin, all of Phoenix, for respondent Phillip Lindsay.

Udall, Judge. Stanford, C. J., and La Prade, J., concur.

OPINION

Udall, Judge.

For more than three years prior to the injury in question Phillip Lindsay (hereinafter referred to as the claimant) had been an employee of the Goodyear Aircraft Corporation, Arizona Division. This corporation (petitioner, herein referred to as the employer) carried workmen's compensation insurance with the State Fund administered by the Industrial Commission of Arizona. During the war period the employer was operating under a cost plus a fixed fee contract with the Bureau of Aeronautics of the United States Navy engaged in the modification of naval aircraft flown to its plant near Phoenix. Under its contract the employer was required to keep on hand at all times a constant minimum labor force of from 900 to 1300 men, notwithstanding that by reason of unpredictable delays on the part of the Navy Department, many of the employer's modification workers from time to time were not actually engaged in any productive work for the benefit of either the employer or the United States. These idle time periods materially increased after V-J Day. The workers, however, were paid for idle time and, in turn, the employer received reimbursement from the government according to the terms of its contract.

When the claimant reported for work with the swing shift at 3:30 P.M. on November 15, 1945, his foreman advised his crew that due to the delay in the arrival of a ship there would be no work to be done for some five hours. During this idle time period the claimant, on his own account, undertook the manufacture of a souvenir in the form of a cigarette lighter, using for that purpose a supposedly discharged 50-caliber machine gun shell which he had gotten from a scrap box in the modification building. None of his duties bore any relationship to such machine gun shells which were the property of the United States. In order to fabricate the shell into a lighter, Lindsay retired alone into the hydraulic room and there used a hand drill and vise which were the property of the employer and which he was authorized to use in connection with his usual modification duties. Unfortunately, this shell contained a live cap which, in the operation, exploded causing an injury to claimant's left eye. The accident occurred at about 6:40 P.M.

Notwithstanding the employer's rules against the use of idle time for the fabrication of personal souvenirs, it was a fairly widespread practice among modification workers to use company machines during their idle time for the making of such gadgets. The Commission found that such rules were honored primarily by their violation and that said violation was with the knowledge of agents and supervisory employees of the Company. There is ample testimony in the record (though conflicting) to support such finding. We shall discuss later the claimant's own knowledge of these rules.

Following the accident Lindsay applied for compensation and after a hearing thereon the Commission denied him an award, finding that at the time of the injury the employee was engaged in an occupation expressly prohibited by his employer and that the employer was not legally responsible for the injury. After several rehearings and the taking of additional testimony the Commission reversed its previous position and found the injury to be compensable as "arising out of and in the course of his employment". The employer, by certiorari, brings this last award here for review.

In order for an injury to be compensable in Arizona under our Workmen's Compensation Act it must arise "out of and in the course of employment * * * not purposely self-inflicted * * *". Sec. 56-936, A.C.A.1939. Both the elements "arising out of" and "in the course of employment" must coexist at one and the same time in order that an award be sustained. Pacific Fruit Exp. Co. v. Industrial Comm., 32 Ariz. 299, 258 P. 253, 55 A.L.R. 975; Brady v. Oregon Lumber Co., 117 Or. 188, 243 P. 96, 45 A.L.R. 812. "The expressions 'arising out of' and 'in the course of' the employment are not synonymous; but the words 'arising out of' are construed to refer to the origin or cause of the injury, and the words 'in the course of' to refer to the time, place, and circumstances under which it occurred. An injury which occurs in the course of the employment will ordinarily, but not necessarily, arise out of it, while an injury arising out of an employment almost necessarily occurs in the course of it." 71 C.J. 644.

In the case at bar the undisputed facts show that the injury occurred at the employer's plant during the claimant's regular working hours for which he was being paid, and at a location in the plant not prohibited to him when and if he be there present for proper purposes. Under such situation there can be no doubt that the injury occurred in the course of the claimant's employment, the crux of the problem being confined to whether said injury arose out of this employment. "In order that an injury may be said to have arisen out of the employment, it must have been the rational consequence of, or have had its origin in, a risk inherent in, or connected with or reasonably incident to, the employment, flowing therefrom as a natural consequence. In other words, the act being performed by the Workman at the time of his injury must be part of the duty he was employed to perform or must be reasonably incidental thereto." 71 C.J. 651, 652. See, also, Caswell's Case, 305 Mass. 500 26...