Pottinger v. Industrial Commission

• Decision Date: 19 November 1974
• Docket Number: CA-IC,No. 1,1
• Citation: 527 P.2d 1232,22 Ariz.App. 389
• Parties: George E. POTTINGER, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Tucson Realty & Trust Co., Respondent Employer, Twin Cities Fire Insurance Co., Hartford Insurance Group, Respondent Carrier. 1013.
• Court: Arizona Court of Appeals

Page 1232

527 P.2d 1232

22 Ariz.App. 389

George E. POTTINGER, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Tucson Realty & Trust Co., Respondent Employer Twin Cities Fire Insurance Co., Hartford Insurance Group, Respondent Carrier.

No. 1 CA-IC 1013.

Court of Appeals of Arizona, Division 1, Department C.

Nov. 19, 1974.

Review Denied Jan. 28, 1975.

Lawrence Ollason, Tucson, and Barbara L. Caldwell, Phoenix, for petitioner.

Edward F. Cummerford, Chief Counsel, William C. Wahl, Jr., Former Chief Counsel by Richard E. Taylor, The Industrial Commission of Arizona, Phoenix, for respondent.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C., by Lawrence H. Lieberman, Phoenix, for respondent carrier.

OPINION

WREN, Presiding Judge.

This is a review of an award of the Industrial Commission for a non-compensable claim. Petitioner (Pottinger) claims that burns received in the act of smoking arose out of and in the course of his employment by respondent employer (Tucson Realty & Trust Company) within the meaning and definition of the Arizona Workmen's Compensation Act. (A.R.S. § 23--1021). The Commission found the act of smoking to be a 'personal' act which did not arise out of his employment. We agree and therefore affirm the award of no compensation.

The facts of this case are rather bizarre. At the time of the occurrences detailed herein, Pottinger was a salaried agency manager in Nogales, Arizona. On October 27, 1971, at the direction of the respondent employer, he attended a convention of the Arizona Association of Independent Insurance Agents at the San Marcos Hotel in Chandler, Arizona, where he had been instructed to set up a cocktail hospitality room for the purpose of promoting business. The employer paid the registration fee but none of his other expenses.

Acting as host, petitioner was present in the hospitality room from around 5 o'clock in the evening until approximately 4 o'clock the next morning. He then made a social stop on the way to his hotel room and consumed another alcoholic drink. Eventually he arrived at his room about 5 o'clock a.m., undeniably intoxicated. Inside the room he struck a match to light a cigarette; it dropped from his grasp and ignited his clothing, causing second and third degree burns on his hands, chest and shoulders.

This court has heretofore enunciated the requisite elements for finding that an employee was acting within the course of his employment. In Transamerica Ins. Co. v. Valley National Bank, 11 Ariz.App. 121, 125, 462 P.2d 814, 818 (1969), we said:

'The conduct of a servant or agent is within the scope of his employment if '(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master."

The record reflects that petitioner's attendance at the convention itself was clearly within the kind of work he was employed to perform, actuated by a purpose to serve his employer. As an insurance saleman he was often required to participate in both professional and social functions. His presence in the hospitality room was required, and the stated objective of the employer was that he mix with other insurance men to discuss old accounts and hopefully generate new ones.

The general rule is stated in 1 A. Larson, Law of Workmen's Compensation § 25 (1972):

'Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.'

Respondents urge, however, that petitioner had left his employment before the injury occurred; that he had removed himself from the ambit thereof when he departed from the hospitality room. Further, that although he was required to be present in thee hospitality room for the cocktail event, there was no requirement that he remain overnight at the hotel, and he did so as a matter of personal convenience, and at his own expense. Therefore, they assert, the injuries were the result of an incident which neither arose out of, nor which occurred while within, the 'time and space' limits of his employment.

We agree that petitioner might successfully argue that the period of sleep prior to the homeward journey did not remove him from the scope of employment. Indeed, in Peterson v. Industrial Commission 16 Ariz.App. 41, 490 P.2d 870 (1971), Division 2 of this court specifically held that 'we believe a reasonable period of sleep is necessarily incidental to the work of a traveling employee required to take overnight lodging away from his home.' 16 Ariz.App. at 44, 490 P.2d at 873. In that case, the employee, a traveling salesman, died of suffocation in this overnight accommodations when, after becoming intoxicated, his head was caught between two metal slats of headboard while sleeping. The court went on to hold that an accident has been said to occur in the course of employment if the employee is injured while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.

While we are not prone to agree with the result reached in Peterson, Supra, we are not persuaded by respondent's contention that the rationale of Peterson, Supra, as to overnight lodging and 'course of employment' is inapplicable because the petitioner here assumed his own lodging expense. Required attendance at the cocktail function necessarily and prudently mandated that he obtain lodging at its conclusion. The employer obviously contemplated an overnight stay as incidental to that required duty regardless of who was to absorb the expense. We therefore affirm that the petitioner must be considered within the course of his employment on the night in question.

Turning next to the question of intoxication and its effect on employment we said in Peterson, Supra:

'Our consideration of this question is guided by the Arizona Supreme Court which has held that the compensation act of this state does not make intoxication or careless or negligent acts a bar to compensation. A person must be drunk to such an extent that he can no longer follow his employment. Ortega v. Ed Horrell & Son, 89 Ariz. 370, 362 P.2d 744 (1961); King v. Alabam's Freight Co., 38 Ariz. 205, 298 P. 634 (1931). The intoxication must have reached an extent to be tantamount to abandonment of employment. Simpkins v. State Banking Department, 45 Ariz. 186, 42 P.2d 47 (1935).' 16 Ariz.App. at 43, 490 P.2d at 872.

Pottinger's injuries might well have partially resulted from fatigue and intoxication brought on by long hours in the hospitality room. However, the employer well knew that liquor would be consumed, and indeed furnished it. In any event, the record does not disclose that intoxication reached the level where there was an abandonment of employment.

Can the burns received from cigarette smoking be held compensable as arising out of the course of employment? We have little in the way of legal precedent to guide us on this issue. Respondents urge that lighting the match was a personal deviation from employment and therefore analogous to Edwards v. Industrial Commission, 94 Ariz. 342, 385 P.2d 219 (1963). In that case, the deceased employee was required by his employer to stay overnight in Prescott, Arizona, where he drowned while swimming in the pool at the motel where he was staying. The Arizona Supreme Court, in finding the accident non-compensable, reasoned:

'The fact that an employee is away from the office does not affect his right to compensation, providing he is 'on the job' during the time he is away. Harris v. Industrial Commission, 72 Ariz. 197, 232 P.2d 846. But the injury itself must in some way occur in the course of employment. . . .

Simply stated, there must be a causal connection between one's employment and the accidental death or injury sustained before compensation can be made. The only connection between decedent's employment and his accident is that his assignment took him to Prescott and necessitated his finding overnight lodging there. More is required under the industrial compensation laws of this state as we have consistently interpreted them. Recreational activity of the kind undertaken by the decedent cannot be said to be an incident to his work or in any way associated with it.' 94 Ariz. at 343--344, 385 P.2d at 220.

Other jurisdictions are in conflict on the question as to whether injuries received as a result of smoking are compensable within the purview of the act. In New York, compensation was denied a night watchman (Pisko v. Mintz, 262 N.Y. 176, 186 N.E. 434), and a janitor (McKenna v. Atlas Contracting Equipment Corp., 275 App.Div. 876, 88 N.Y.S.2d 668) who set fire to themselves apparently by smoking in bed. However, in Wiseman v. Industrial Accident Commission, 46 Cal.2d 570, 297 P.2d 649 (1956), a contrary decision was reached where an employee died as a result of fire in a hotel room supplied by employer where the fire may have been started by careless smoking of a guest who was there for a possible immoral purpose. Smoking was there held not so remotely connected with his employment that it did not arise out of it.

Under a doctrine of 'personal comfort' it is commonly held that employees who engage in reasonable acts which minister to their personal comforts remain within the course of employment, and that they may be compensated for resulting injuries which can be said to arise out of their employment. See generally 1 A. Larson, The Law of Workmen's Compensation § 21.00 et seq. (1972), and 7 Schneider's Workmen's Compensation § 1617 et seq. (Perm. ed. 1950).

After noting that the rule of personal...