Hobson v. Twentieth Century Fox Film Corp., 5289

• Decision Date: 30 October 1950
• Docket Number: No. 5289,5289
• Parties: HOBSON v. TWENTIETH CENTURY FOX FILM CORP. et al.
• Court: Arizona Supreme Court

Page 399

223 P.2d 399

71 Ariz. 41

HOBSON v. TWENTIETH CENTURY FOX FILM CORP. et al.

No. 5289.

Supreme Court of Arizona.

Oct. 30, 1950.

Leonard S. Sharman, Phoenix, for petitioner.

Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.

STANFORD, Justice.

This case is before us on a writ of certiorari to review an award of the Industrial Commission of Arizona, denying compensation to petitioner, Wayne Hobson.

Petitioner, who is thirty-seven years of age, was employed by the defendant-employer, Twentieth Century Fox Film Corporation. His work was that of a horse wrangler, in the filming of a western picture, 'The Arrow', in the Oak Creek area, near Sedona, Arizona. The location where the pictures were to be taken was about seven miles from the Sedona Lodge which was headquarters for the company, and where most of the actors and workers were fed and quartered. The corral was about one mile from the scene where the pictures were made, being on the road to the location of the set.

The accident occurred at the close of the day's work on the 21st day of June, 1949, as petitioner was preparing his string of horses to return to the corral. The manner in which the accident occurred, was told in the following language given in his testimony: 'The black horse, the third horse from me over, he bites the sorrel horse next to me. I am between the last two horses. He reaches over and bites this horse here, and the sorrel horse, he whirls to kick him with his two back feet, and he whirled his head into me and knocks me down as I am getting ready to mount to go on * * *.'

On the 22nd of June, 1949, after some first aid treatment, petitioner was taken to the Lawrence Memorial Hospital at Cottonwood, Arizona. He was kept there about three days then came to Phoenix, where he was treated by Dr. Stanford F. Hartman, at the Grunow Clinic.

The testimony shows that 'he was admitted on the 29th to the Good Samaritan Hospital for traction and Kenney packs in an attempt to relieve the spasm in his muscles.' He remained there until the 7th day of July, 1949.

Dr. K. B. Brilhart, of the hospital at Cottonwood, in his report, said: 'Examination of the back reveals some moderate spasm of the erector spinae muscles of the lumbar and dorsal areas.'

Dr. Hartman's report of the case to the Industrial Commission, shows the following:

'Diagnosis: Myositis of the thoracic and lumbar muscles.

'Describe treatment: Head traction, Kenney packs, mild sedation, low back support, physiotherapy of heat, exercise, massage.

'Results: Still complains of pain in the back but has improved.'

After hearing, the Commission issued its Findings and Order, Non-Compensable Claim, the first finding of same being: 'That the above-named applicant on June 21, 1949, did not sustain a personal injury by accident arising out of and in the course of his employment.'

It was ordered that petitioner 'take nothing by virtue of said claim.'

Following a petition for rehearing, the original order was affirmed, after which the matter was brought to this court.

In order to determine the correctness of the Commission's finding that the petitioner did not sustain a personal injury by accident arising out of and in the course of his employment, it has been necessary for us to carefully examine the facts developed at the hearing.

In addition to the testimony of petitioner Hobson, showing how and when he was hurt, the affidavit of Charles M. Prentice accepted by stipulation of counsel, in lieu of his testifying at the hearing, states: 'The set where they were filming the picture was located about...