King v. Alabam's Freight Co.

• Decision Date: 30 April 1931
• Docket Number: Civil 2998
• Citation: 298 P. 634,38 Ariz. 205
• Parties: HELEN KING, JACK EDWARD KING, VINCENT V. KING, FRANK E. KING, MYRTLE KING, and MARGARET KING, Petitioners, v. ALABAM'S FREIGHT COMPANY, a Corporation, Defendant Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, and R. B. SIMS, BURT H. CLINGAN and WILLIAM E. HUNTER, Members of the Industrial Commission of Arizona, Respondents
• Court: Arizona Supreme Court

298 P. 634

38 Ariz. 205

HELEN KING, JACK EDWARD KING, VINCENT V. KING, FRANK E. KING, MYRTLE KING, and MARGARET KING, Petitioners, v. ALABAM'S FREIGHT COMPANY, a Corporation, Defendant Employer;

THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, and R. B. SIMS, BURT H. CLINGAN and WILLIAM E. HUNTER, Members of the Industrial Commission of Arizona, Respondents

Civil No. 2998

Supreme Court of Arizona

April 30, 1931

PROCEEDING for Writ of Certiorari by Helen King and her five minor children to set aside an award of the Industrial Commission denying them compensation for the death of John David King, husband and father. Award set aside.

Mr. H S. McCluskey, for Petitioners.

Mr Edward J. Flanigan and Mr. Terrence A Carson, for Respondents.

OPINION

McALISTER, C. J.

This is a proceeding in certiorari by Helen King and her five minor children to review an order of the Industrial Commission denying compensation to them for the death of John David King, husband and father, on January 11, 1930, which, it is alleged, was caused by an accident arising out of and in the course of his employment by the Alabam's Freight Company, an Arizona corporation.

Petitioners allege in their claim for compensation that deceased was frozen to death while acting in the course of his employment and in both the original award dated April 14, 1930, and in the one on rehearing under date of July 3, 1930, compensation was denied upon the ground that the evidence was insufficient to establish that he was at the time employed by Alabam's Freight Company, or, if he was, that his death arose out of his employment.

Both in their petition for the writ and their assignments petitioners attack first the procedure followed by the Industrial Commission in arriving at its decision. It appears from the copy of the proceedings certified to this court by the commission that the evidence on rehearing was heard by a referee on May 28, 1930, none of the commissioners themselves being present, and that it had not been transcribed by July 3d when the award was made. This being true petitioners contend that the commission made the findings and the award without hearing the evidence or knowing what it was and, therefore, that its action was unlawful, arbitrary and in excess of its powers. This charge, if true, would demand that the decision be set aside because the law contemplates that the orders and awards of the commission shall be made after a full consideration by it of all the facts of the case and shall be its deliberate act. In Johnson v. T. B. Stewart Construction Co., 37 Ariz. 250, 293 P. 20, the following language is used:

"We think it is implicit in the Workmen's Compensation Act that all orders and awards must be the deliberate act of the commission. It is the duty of the commission as a body to consider and deliberate upon the evidence and all of the evidence, whether the issue be one of compensation or one for the protection of the life, health, safety, and welfare of the employees, and bring to bear their best and most conscientious judgment with a view of reaching a just, fair, and equitable conclusion. The commission cannot delegate this imperative duty to any one."

However, the fact that the testimony had not been transcribed when the award was made does not indicate that the commission did not act on it in reaching its decision. The notes of the stenographer were in its possession and were easily read by her, and in the absence of an affirmative showing that it did not have her do this the presumption that it performed its full duty in this respect would necessarily prevail, and especially is this true in view of the fact that a transcript of the evidence is a part of the proceedings which the commission certified in response to the writ of certiorari as constituting the record upon which it acted in making its findings and award. The provision that "all testimony shall be taken down by a stenographer" (paragraph 1401, Revised Code of 1928), does not imply that it shall be transcribed in every one of the thousands of cases heard by the commission each year, because to do so would be expensive and serve no useful purpose in a large percentage of the hearings which are mere matters of form and wholly uncontested, but under [38 Ariz. 209] paragraphs 1404 and 1452, Revised Code of 1928, it is necessary in those cases in which a party commences in the superior court an action "to set aside, vacate or amend" an order of the commission, or applies to this court "for a writ of certiorari to review the lawfulness of the award." There is no statutory requirement that it be done prior to service upon the commission of the proper papers in one of these instances and perhaps no occasion for it up to that time unless the commission feels that a study of the written testimony, not the mere reading of it by the reporter in the hearing of the members thereof, is necessary to advise it fully of the facts.

In their assignments petitioners attack the findings of the commission, their contention being that there is no substantial, competent evidence to support them. The facts which the commission found and acted on in making its award are summarized in finding eleven reading as follows:

"That the evidence is insufficient to establish that at said time the said King was an employee of the Alabam's Freight Company or that he was performing any duty, work or service for Alabam's Freight Company; that his presence on Mingus Mountain on the road between Prescott and Jerome on said 11th day of January was occasioned solely by personal inclination and that his death did not arise out of any work, service or duty which he was performing for any employer, but arose solely out of his permitting himself to become under the influence of intoxicating liquor; that said King was not hired by said Kirkpatrick, or by anybody else, in behalf of said Alabam's Freight Company to go up said mountain at said time, or at any time; and said Kirkpatrick did not possess the authority to hire said King to go up said mountain on said date in behalf of said Alabam's Freight Company."

If the evidence sustains this finding there can, of course, be no question of the correctness of the award, because petitioners are not entitled to compensation unless the deceased at the time of his death was an employee of the Alabam's Freight Company and the accident resulting therein arose out of his employment, and if he was not employed by Kirkpatrick in behalf of that company to make the trip up Mingus Mountain he was not an employee thereof and if his death was due solely to voluntary intoxication it did not arise out of his employment. To determine the correctness of this contention it is necessary to state briefly the facts.

John David King, the deceased, had been regularly employed by the Black Canyon Stage Company as a stage driver between Jerome and Prescott, Arizona, for a year prior to January 11, 1930, but on that day was directed by his employer not to make the trip to Prescott because the weather was very stormy and the road so deeply covered with snow that it was impassable. His services for the Black Canyon Stage Company were paid for by the day but he received nothing from it for January 11, 1930.

For a number of months prior to January, 1930, the Alabam's Freight Company had operated on regular, daily schedule two trucks between Phoenix and Jerome, Arizona. Both trucks left Phoenix about 7:00 P.M. each day and arrived in Jerome the following morning, one at 6:00 A.M. and the other about two hours later. On the evening of January 10, 1930, they started from Phoenix according to schedule carrying freight and perishables but stalled at Congress Junction, so their drivers shipped the perishables from there by express and the rest of the load by freight and wired the company's agent in Jerome, Timothy Kirkpatrick, that they were doing this but the telegram was not received by him at all, or by anyone else in Jerome until Monday, the thirteenth. Unaware of the fact that these trucks had not gone beyond Congress Junction and thinking some hours after the time for their arrival on January 11th had passed that they had stalled in the storm on Mingus Mountain Kirkpatrick began to make preparations to go up the road toward Prescott to render them whatever aid he could.

According to the record he began preparing for the trip by looking for a pair of chains for the front wheels of the Ford truck in which "he was going up the hill to break the road in." Between 11:00 and 11:30 that morning he told Allen McDonald, an employee of the Alabam's Freight Company who had been hired by Kirkpatrick as a truck driver around Jerome three months prior thereto, that he was doing this and that "he would have to get an experienced man if he went up there -- he wanted a man that was experienced to the road." Replying to the question, "What was his (Kirkpatrick's) capacity there?" McDonald said:

"In case a truck would be stuck in any way they would either call Prescott or Jerome, wherever they could find traffic going to Prescott or Jerome. If we had any stuff on the truck we would take up the little car and pick off the perishable stuff."

About noon he drove up to the Liberty Garage in Jerome looking for the chains and Fred Blakeslee, an employee there, testified as follows concerning the conversation between them:

"He had a set on the rear and wanted a set for the front. I didn't have them in stock and I called our garage at Cottonwood to see if they had them and they didn't, and I asked him why he wanted chains on the front wheels and he said he was going over the mountain to get one of their trucks that was stalled over there and asked me if I knew anyone he could get to go with him. I...