Ocean Accident & Guarantee Corporation v. Industrial Commission of Arizona
| Decision Date | 27 June 1927 |
| Docket Number | Civil 2614 |
| Parties | OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, Petitioner, v. THE INDUSTRIAL COMMISSION OF ARIZONA, and R. B. SIMS, BURT H. CLINGAN and H. S. McCLUSKEY, Members of Said THE INDUSTRIAL COMMISSION OF ARIZONA, Respondents |
| Court | Arizona Supreme Court |
Original proceeding for writ of review to set aside award of the Industrial Commission in Injury No. M.-6730. Vivienne Leftwich, applicant. Award set aside.
Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Petitioner.
Mr John J. Taheny for Respondents.
This is an application by the Ocean Accident and Guarantee Corporation, Limited, for a writ of review of an award in favor of Vivienne Leftwich against it as the insurer of E. C Mason, doing business as the Owl Drug Company, her employer.
It is provided in the Compensation Act, chapter 83, section 90, Session Laws of 1925, that any party affected by a decision of the Industrial Commission may prosecute such a proceeding for the purpose of having the lawfulness of the original award, or the award on rehearing, inquired into and determined. This appeal is from the award on a rehearing.
The return of the Commission includes the evidence taken in the case and all the proceedings had before it. It appears from the return that it was stipulated at the rehearing that applicant, Leftwich, was an employee of the Owl Drug Company at the time of her injury; that she was disabled by accident for the period set forth in the award; and that her disability is permanent as therein described.
It also appears therefrom that the Commission made a finding to the effect that applicant, Leftwich, while employed by E. C. Mason, doing business as the Owl Drug Company, sustained such injury by an accident arising out of and in the course of said employment. The only question raised on this appeal is as to whether this finding is supported by the evidence; it being contended by the petitioner that the evidence shows applicant was not injured by an accident arising out of and in the course of her employment, and that therefore the Commission acted in excess of its powers in making the award. It is provided in the act that "if necessary, the court may review the evidence" (section 90), and we find the errors assigned make such review necessary for the purpose of determining whether the evidence supports the Commission's findings.
The facts are as follows: The employer, E. C. Mason, doing business as the Owl Drug Company, had in 1926 four drug-stores in the city of Phoenix, and the claimant, Vivienne Leftwich, was the buyer of the toilet goods departments of all such stores and had personal charge of the toilet goods department of store No. 2, located at the corner of Adams Street and First Avenue.
On March 24th, 1926, the Owl Drug Company wrote a letter to Richard Hudnut Company, of New York, stating in brief that store No. 2 had developed a thorough toilet goods department; that it was found necessary to put a special attendant in this department; suggested a highly trained young woman, then in Phoenix, whose services were available; expressed a keen desire to put the Richard Hudnut goods "over big," and asked said Hudnut Company if they would assist in paying her salary of one hundred dollars a month in case satisfactory arrangements could be made. On March 30th the Hudnut Company answered the above letter stating that the matter inquired about had been referred to its representative for the district of Arizona, a McGrath. McGrath came to phoenix, and on may 1st saw Mason and also met applicant, Leftwich. This was on Saturday, and probably some time in the afternoon, at the sample rooms of the Adams Hotel. Later, at store No. 2, it was arranged between Mason and Leftwich that the latter should entertain McGrath over the week end. Leftwich says:
Mason's explanation of the arrangement was:
"Mr. McGrath was here in the interest of Richard Hudnut & Co. I was trying to perfect an arrangement with them for the benefit of the Owl Drug Company, and I told Mrs. Leftwich that they were to be here over Sunday and that it would be a good idea if she would entertain them; doing anything they would like to do; that day I was tied up so that I couldn't get away, and I asked her to do it, leaving it up to her what to do and to what extent."
Thus commissioned, applicant says she invited McGrath to go to Prescott for the week end, and that in his automobile she and two others (whose names she declined to disclose) made the trip. On May 2d she says she had an accident at Granite Dells where she was asked to go with McGrath, and when asked how the accident happened she said, "I slipped off a rock and fell."
In addition to the above testimony, it was shown that applicant did the purchasing of toilet articles for the four Owl drug-stores, and in doing so would sometimes order goods by telephone, sometimes through traveling salesmen or drummers, sometimes by going to salesrooms in Phoenix.
It was also in evidence that the Richard Hudnut Company did not as a rule make arrangements, or contracts, of the kind sought by Mason, in cities and communities as small as Phoenix; and it appears that Mason thought the contract a very desirable one, in that if under it his sales amounted to enough, discounts were allowed by Hudnut and were to be applied on his store demonstrator's salary.
It also appears that the expenses of the trip were not borne by applicant nor Mason.
Under our Compensation Act, section 70, the injuries to employees that are compensable are those suffered "by accident arising out of and in the course of employment." And, while the context of the act shows that a greater range of employees than in most acts is intended to be covered, there is not manifested any purpose to change or modify the character or kind of accidental injury, for the words used in describing such injury are almost if not identical with those in the English compensation statute and the statutes of our sister states. Therefore, as might be expected, the words of our statute describing the kind of injuries to be compensated were, before we adopted them, construed many times by the English courts and also by the state courts. The definition of that phrase most largely quoted and approved in this country is the one by RUGG, Chief Justice, in Re McNicol, 215 Mass. 497, L.R.A 1916A 306, 102 N.E. 697, and which we take it is not a departure from but in harmony with the English conception as contained in their decisions. It is as follows:
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