Pauley v. Industrial Commission

• Decision Date: 20 April 1973
• Docket Number: No. 11039--PR,11039--PR
• Parties: Mary F. PAULEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, H. A. Leavitt Attractions, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier.
• Court: Arizona Supreme Court

Page 1160

508 P.2d 1160

109 Ariz. 298

Mary F. PAULEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, H. A. Leavitt Attractions, Inc., Respondent Employer, State Compensation Fund, Respondent Carrier.

No. 11039--PR.

Supreme Court of Arizona, In Banc.

April 20, 1973.

Rehearing Denied May 15, 1973.

Gorey & Ely by Joseph M. Bettini, Phoenix, for petitioner.

William C. Wahl, Jr., Chief Counsel, Phoenix, for respondent Industrial Commission of Arizona.

Robert K. Park, Chief Counsel by Harlan J. Crossman, Phoenix, for respondent employer and State Compensation Fund.

STRUCKMEYER, Justice. On petitioner's claim for compensation the Arizona Industrial Commission entered an award denying benefits. The Court of Appeals affirmed, 18 Ariz.App. 137, 500 P.2d 1125 (1972). Opinion of the Court of Appeals vacated and the award of the Industrial Commission affirmed.

Two questions are raised for our determination: the first is whether petitioner was 'hired' in Arizona within the meaning of A.R.S. § 23--904, subsec. A.

Respondent employer, H. A. Leavitt Attractions, Inc., is the owner and operator of a traveling carnival whose business is conducted in the smaller communities of Arizona and California. Petitioner and her husband applied for jobs with respondent at its headquarters in Phoenix, Arizona and were accepted for employment by respondent. She filled out papers relative to income tax deductions and social security in Phoenix on May 6, 1970. On the following day, petitioner drove her husband's pickup truck equipped with a camper and her husband drove a Leavitt truck to Oakland, California. Her principal duties were that of a ticket seller, although she had others when the carnival was not in actual operation. Her first paycheck was on the 18th of May for the week commencing on Monday the 11th of May for services which were rendered in California. From this latter fact the Commission concluded that petitioner was not hired in Arizona.

We rejected this quaint notion in Knack v. Industrial Commission, 108 Ariz. 545, 503 P.2d 373 (1972). A bilateral agreement of employment is complete when there is reciprocal understanding that the offered service has been accepted. When and where performance will take place are but incidents of the employment contract. Manifestly, petitioner was hired in Phoenix, Arizona at respondent's home office.

The second question presented is whether petitioner's injury arose out of and in the course of her employment.

At Fairfield, California, about eight weeks after entering into employment with the Leavitt Company, petitioner sustained a broken ankle while crossing a ditch. Her uncontradicted testimony is that when the carnival was being set up, as on the day she was injured, she did just anything that was needed to be done, such as clean the ticket and concession stands. The evidence supports the conclusion that the Leavitt employees, twelve in number, did not have any fixed times for coffee or food breaks but that such breaks were taken as the opportunity occurred throughout the day.

On the day of petitioner's injury, she commenced work about noon. At 3:00 p.m. she went to her camper for coffee. While there, she and the Leavitts' 18-year-old daughter, who also worked for the carnival, heard the bell of an ice cream truck which was in a park adjacent to the lot on which the carnival was located. Midway between the camper and the ice cream truck was an open ditch. Petitioner and the Leavitts' daughter started to cross the ditch to buy ice cream. While crossing the ditch, petitioner slipped and suffered a fractured ankle.

From these facts, respondent concludes that petitioner had temporarily abandoned her employment for a mission of her own off the employer's premises. It is respondent's legal position that where an employee is injured going to or coming from his place of work, the accident and the resulting injuries do not arise out of or in the course of employment. This is the rule in Arizona. Ebasco Services, Inc. v. Bajbek, 79 Ariz. 89, 93, 284 P.2d 459, 462 (1955); Serrano v. Industrial Commission, 75 Ariz. 326, 329, 256 P.2d 709, 710 (1953); Butler v. Industrial Commission, 50 Ariz. 516, 521-522, 73 P.2d 703, 705 (1937).

Petitioner, however, urges that the case should not be controlled by the going and coming rule but rather by what has generally become known as the 'on premise rule.' The on premise rule is a limitation on the going and coming rule which, although accepted nearly everywhere in the United States, has been rejected in Arizona commencing with McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 226 P.2d 147 (1950).

By the Constitution of Arizona, Article 18, § 8, A.R.S., an injury to be compensable must arise out of and in the course of employment. The term 'arising in the course of employment' presupposes that the employer and employee do not think of the acts of going to and from work as part of the services for which the employee was hired, Ryan v. St. Vincent De Paul Roman Catholic Church, 41 N.J.Super. 206, 211, 124 A.2d 315, 318 (N.J.App.Div.1956), but rather that the employment relationship is suspended from the time the employee leaves his work at the end of his shift until his work is resumed at the start of his next shift. Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 35, 215 P.2d 736, 737 (1950). Some courts have held that the perils encountered on the trip to work and return are not hazards peculiar to industry and, therefore, industry should not be accountable for injuries arising from them. See, Harlan Collieries Co. v. Shell, 239 S.W.2d 923, 926--927 (Ky.1951), overruled, Harlan Appalachian Regional Hospital v. Taylor, 424 S.W.2d 580 (Ky.1968).

Larson, in discussing the basic going and coming rule, has this to say:

'The course of employment is not confined to the actual manipulation of the tools of the work, nor to the exact hours of work. On the other hand, while admittedly the employment is the cause of the workman's journey between his home and the factory, it is generally taken for granted that workmen's compensation was not intended to protect him against all the perils of that journey. Between these two extremes, a compromise on the subject of going to and from work has been arrived at, largely by case law, with a surprising degree of unanimity: for an employee having fixed hours and place of work, going to and from work is covered On the employer's premises.' 1 A. Larson, The Law of Workmen's Compensation, § 15.11, p. 4--3 (1972) (emphasis in original) (footnotes omitted).

In McCampbell v. Benevolent & Protective Order of Elks, Supra, the claimant, an employee of the Elks Lodge in Winslow, Arizona, fell while climbing a flight of five cement steps just outside the front door of the Elks Lodge on his way to work. This Court acknowledged there were many cases holding that if the...