McCampbell v. Benevolent & Protective Order of Elks, No. 536

• Decision Date: 18 December 1950
• Docket Number: No. 5404,No. 536,536,5404
• Citation: 226 P.2d 147,71 Ariz. 244
• Parties: McCAMPBELL v. BENEVOLENT & PROTECTIVE ORDER OF ELKS,, et al.
• Court: Arizona Supreme Court

Page 147

226 P.2d 147

71 Ariz. 244

McCAMPBELL v. BENEVOLENT & PROTECTIVE ORDER OF ELKS, No. 536, et al.

No. 5404.

Supreme Court of Arizona.

Dec. 18, 1950.

Guy Axline, of Holbrook, Shute & Elsing, of Phoenix, for petitioner.

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

PHELPS, Justice.

For a number of years William G. Kelly, hereinafter referred to as deceased, was employed by the Elks' Lodge at Winslow, Arizona, as custodian of the building and manager of the lodge. On August 22, 1949, he was injured by a fall on his way to work. The fall occurred on the premises of the lodge as deceased walked along the concrete pavement leading from the street to the entrance of the Elks' Building. At the time of the accident deceased was 76 years of age and was at times required to use crutches, due to a former injury to his knee. On the morning in question he was, and had been for several days, using crutches. He had been conveyed by auto from his home to the lodge by the janitress, Annie Hayes, who was also an employee of the lodge. It was her custom to drive by the home of deceased and take him to the lodge in her car. Upon arriving at the front of the Elks' Building they both alighted from the car. The janitress walked in front of the deceased from the car up the concrete pavement to the entrance of the building and had put the key in the lock preparatory to unlocking the door when she looked around and saw deceased lying on his back on the pavement with his feet close to the bottom of the steps leading up to the front of the building. His head pointed directly toward the street and his feet were close to the bottom of the steps leading up to the door. The steps are concrete and consist of five in number extending across the entire front entrance. They lead up to the front door from the front and from each end of the steps, that is from three sides. The janitress did not see the deceased fall. There is nothing in the record to the effect that she heard him fall or what caused her to look around when she saw him lying on his back on the concrete walk. Neither is there anything in the record from the deceased or from any other source as to just what caused him to fall. He told his daughter, Mrs. Schaar, he had fallen on the steps of the Elks' club. The janitress assisted deceased in getting up and accompanied him into the building. After sitting in a chair for a few minutes he began to do his work as usual and stated that he didn't think he was hurt much. Later in the day, however, he stated that he got a pretty hard spill and complained of not feeling too well. He continued to work during that day. He also worked during the three days following, that is, on August 23, 24 and 25 but complained each day of not feeling well. He also complained of some soreness in his body. On the 26th of August Mr. Kleindienst, secretary of the lodge, was notified that he was unable to come to work. On the latter date he was dizzy, mentally confused, and had considerable difficulty in enunciating his words. His tongue seemed thick.

The members of his family observed on the second day after the fall that there was a lack of coordination in his movements when he attempted to eat or to pick up anything.

Dr. Wright was called on the morning of August 26th and deceased was sent to the hospital. He never again went back to work but did not die until February 12, 1950. No report of the accident or application for compensation was made to the commission until October 5, 1949, when Mr. Kleindienst, secretary of the lodge, reported the injury. Thereafter on October 17th the deceased filed his claim for compensation. On the same date Dr. Wright wrote a letter to the commission concerning the applicant's condition and on the following day made a report to the commission concerning the accident and injury.

There is no dispute in the evidence to the effect that the cause of the death of the deceased was cerebral hemorrhage, to which the doctors refer as a 'cerebral vascular accident.' There is no dispute about deceased having fallen on the concrete walk leading from the sidewalk to the entrance of the Elks' Lodge building on the date above mentioned; and that the fall occurred on the property of the Elks' Lodge as he was stepping up on or about to step up on the steps leading to the front door of the building. There is no dispute in the evidence that deceased complained of not feeling too good or of not feeling too well during the day the fall occurred and on each of the following three days during which period he was performing his work at the club. There is no dispute that his family noticed a faulty coordination in his movements from the second day after his accident until August 26th when he 'blacked out,' or that on the latter date he became mentally confused and had great difficulty in his speech. There is no dispute that deceased was unable to do any kind of work after August 26th. There was a conflict in the medical testimony, however, as to whether the fall produced the cerebral hemorrhage or whether a cerebral hemorrhage caused deceased to fall.

The commission on March 28, 1950, after a hearing at which testimony was received, made its finding and award denying compensation upon the ground that it found deceased did not sustain an injury by accident arising out of and in the course of his employment. A rehearing was granted and after receiving further evidence the commission on July 12, 1950, affirmed its original findings and award. The cause comes to us on certiorari based upon the following assignment of error: 1. The commission erred in its finding and award of March 28, 1950 and July 12, 1950, for the reason that the evidence establishes that the injury was compensable; and a finding to the contrary is not supported by the evidence and is not in accordance with the law.

Counsel for the commission agree there was an accident and that the accident occurred on the premises of the lodge and apparently agree that it occurred in the course of his employment but deny that the injury arose out of his employment.

It is the unquestioned law of this state that three things must concur to entitle an injured person to compensation under the provisions of our Workmen's Compensation Act. A.C.A.1939, § 56-901 et seq. They are as follows: (a) the injury must be by an accident; (b) it must occur during the course of his employment; and (c) it must arise out of his employment. Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624.

We will omit, for the present, a discussion of any claimed conflicts in the evidence and proceed to a determination of whether the conclusion of the commission that the injury sustained by deceased 'did not arise out of the employment of deceased,' is reasonably supported by the evidence.

In the case of Pacific Fruit Express Co. v. Industrial Commission, 32 Ariz. 299, 258 P. 253, 254, 55 A.L.R. 975, we quoted with approval the following language from Brady v. Oregon Lumber Co., 117 Or. 188, 243 P. 96, 45 A.L.R. 812:

"The words 'arising out of and in the course of his employment,' as used in the Workmen's Compensation Law (Or.L. § 6616), should be given a broad and liberal construction. This is the holding of many courts, including our own. In a valuable note appearing in Ann.Cas.1918B, 769, the view of different courts concerning a workman's right to compensation under laws similar to our own is set down. We quote therefrom the following:

"'To entitle a workman to an award of compensation under a Workmen's Compensation Act, his injuries must result from an accident both arising out of and in the course of his employment. The two elements must coexist. They must be concurrent and simultaneous. The one without the other will not sustain an award. Yet the two are so entwined that they are usually considered together in the reported cases, and a discussion of one of them involves the other. * * * 'In the course of' points to the place and circumstances under which the accident takes place and the time when it occurred. In order to restrict beyond the reach of question the words 'in the course of the employment,' the words 'arising out of' were added, so that the proof of the one without the other will not bring a case within the act. The term 'arising out of' in the act points to the origin or cause of the injury. It presupposes a causal connection between the employment and the injury. Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 A. 320, L.R.A.1916E, 584, 12 N.C.C.A. 308. The words 'out of' involve the idea that the accident is in some sense due to the employment. Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L.R.A.1918F, 923, 15 N.C.C.A. 674.'

"In treating this question the Supreme Court of Texas said, in the case of Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 110, 246 S.W. 72, 73, 28 A.L.R. 1402, 1405: 'An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily, or reasonably inherent in or incident to, the conduct of such work or business. As tersely put by the Supreme Court of Iowa: 'What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task.' Pace v. Appanoose County, 184 Iowa 498, 168 N.W. , 918, 17 N.C.C.A. 682.'

"In Cox v. Kansas City Refining Co., 108 Kan. 320, 323, 195 P. , 865, 19 A.L.R. 90, 93, the Supreme Court of Kansas said: 'The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event 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...