Ortega v. Ed Horrell & Son
| Decision Date | 21 June 1961 |
| Docket Number | No. 7247,7247 |
| Citation | 362 P.2d 744,89 Ariz. 370 |
| Parties | Adelita G. ORTEGA, Petitioner, v. ED HORRELL & SON, (Earl E. Horrell, Administrator of the Estate of Ed Horrell, Deceased, and Earl E. Horrell) Respondent Employer, and The Industrial Commission of Arizona, Respondent Insurance Carrier. |
| Court | Arizona Supreme Court |
Shute & Elsing, Phoenix for petitioner.
Donald J. Morgan, Phoenix, for respondent Industrial Commission of Arizona, James D. Lester, Edward E. Davis, C. E. Singer, Jr., and Lorin G. Shelley, Phoenix, of counsel.
Petitioner seeks by certiorari to review the lawfulness of an award of the Industrial Commission of Arizona, respondent herein, denying her any benefits under her Widow's Claim for Compensation. At hearings before the Industrial Commission it appeared petitioner's deceased husband was before his death, ranch foreman for Ed Horrell & Son, also a respondent herein. It further appeared that on March 12, 1960, petitioner's decedent and his brother-in-law Frank Lavin, who also worked for respondent Horrell, set out for Douglas in a car owned by Lavin's brother. The purpose of the trip was to return two part-time ranch hands to Douglas.
After depositing their passengers in Douglas about midnight, petitoner's decedent and Lavin went across the border to Agua Prieta where they spent some time in a bar, came back across the border and slept in the car. Lavin, the surviving witness, recalls nothing after going to sleep in the car until he found himself in the hospital shortly after the fatal accident, which occurred around noon, Sunday, March 13. Further relevant testimony disclosed that sometime after the accident, blood alcohol tests were taken of the decedent and Lavin and that Lavin had a reading of 0.16, and Ortega, 0.10. There was conflicting evidence as to whether decedent and Lavin attended a rodeo in Douglas on Sunday, March 13. However, since the employer indicated the men were free to spend the time between Saturday night and Monday morning as they pleased, the evidence regarding attendance at the rodeo is irrelevant to the question of whether the accident was employment-connected.
The sole question before this Court is whether decedent and Lavin were engaged in any activity connected with the business of the employer, i. e., in the course of employment, at the time of the fatal accident out of which petitoner's claim arises. Basically, two factors must be considered in resolving the principal question. The first factor relates to the conflicting evidence regarding the route choser by decedent and Lavin on their return trip to Globe. The testimony indicated the return route they apparently chose was some 30 miles longer than the route taken on their trip from Globe to Douglas. The employer stated categorically, however, that he did not care which route was taken and would have paid for any mileage turned in. There was further conflicting testimony, sketchy at best, that the longer route was chosen because a portion of the shorter route was under construction. Even if the longer route was taken inadvertently it would not...
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