Holloway v. Industrial Commission of Arizona, Civil 2749

• Decision Date: 21 November 1928
• Docket Number: Civil 2749
• Citation: 271 P. 713,34 Ariz. 387
• Parties: C. B. HOLLOWAY and W. E. MORGAN, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN and WM. E. HUNTER, Members of Said the Industrial Commission of Arizona, Respondents
• Court: Arizona Supreme Court

271 P. 713

34 Ariz. 387

C. B. HOLLOWAY and W. E. MORGAN, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN and WM. E. HUNTER, Members of Said the Industrial Commission of Arizona, Respondents

Civil No. 2749

Supreme Court of Arizona

November 21, 1928

Original proceeding by C. B. Holloway and W. E. Morgan for writ of certiorari directed to Industrial Commission to set aside the award in favor of Henry Espana. Award affirmed.

Mr. F W. Perkins, for Petitioners.

Mr. J J. Taheney, for Respondents.

OPINION

McALISTER, J.

Upon application of Henry Espana for compensation for an injury sustained by him on October 12, 1927, while working on a threshing machine, the Industrial Commission both originally and upon rehearing, made an award of $1,903.53 in his favor, and C. B. Holloway and W. E. Morgan, against whom the award runs and who were not insured against liability under the provisions of the Workmen's Compensation Act of Arizona (Laws 1925, chap. 83), have by certiorari brought the matter here for review. The objection to the award is based upon two grounds; the first being that the accident causing the injury did not arise out of and in the course of the employment, and the second that there is no reasonable evidence to support the finding that W. E. Morgan was a partner of C. B. Holloway at the time of the accident. These propositions necessitate a brief statement of the facts.

Some five days before the accident, petitioner W. E. Morgan went to the town of Williams, which was fifteen miles from his farm, to employ several men to work on a threshing machine, and among those he secured and took out to the ranch was applicant Henry Espana, a fifteen-year-old boy. Both he and Mr. Morgan testified that he was employed to cut bands on bundles for the thresher, the latter stating in addition that he was hired to do nothing else in connection with the thresher. Espana cut bands on bundles the first three days, but at his request loaded hay in the field the fourth day. According to his testimony, however, he expected to cut bands again on the fifth, and soon after reaching his work that morning the machine was started merely to warm it up, but before running any length of time the wheel on top ceased to turn, and both Morgan and the repairman, a Mr. Cargyle, asked him to go up on the thresher and start it. He climbed up and attempted it, but in doing so one of his feet slipped, was caught in the cylinder, and so mangled that it was later amputated. Both Morgan and Cargyle denied that they asked him to perform this act, but testified that he climbed up of his own accord out of idle curiosity and without their knowing it until they heard him scream. The Industrial Commission, however, accepted the testimony of Espana and found that Morgan did make the request, and this court is bound by that finding, because its unvarying rule, announced many times, is that a finding made on conflicting testimony will not be disturbed where there is sufficient evidence to support it.

One of the contentions of petitioners is that since Espana was employed to cut bands on bundles, and not to run or repair the threshing machine, the accident did not arise out of and in the course of his employment. This is true, it is argued, for two reasons. The first is that it occurred while he was doing something separate and distinct from the service he was hired to perform, that is, at a time when he had quit his regular employment and was for the time being pursuing his own pleasure, thus bringing him within the ruling in Ocean Accident & Guarantee Corporation, Ltd., v. Industrial Commission of Arizona et al., 32 Ariz. 265, 257 P. 641, which held that an injury under such circumstances is not compensable. In view of the finding, however, that his employer directed him to do what he did, there is nothing in the record upon which this claim may rest.

The second reason is that even though Espana was asked by Morgan to start the wheel and was injured while attempting to comply with the order, his service in that respect was a casual employment, and not in the course of the work he was engaged to do. This is likewise without merit, for though he was employed to cut bands on bundles and turning the wheel to start...