Rowe v. Goldberg Film Delivery Lines, Inc.

• Decision Date: 11 October 1937
• Docket Number: Civil 3878
• Citation: Rowe v. Goldberg Film Delivery Lines, Inc., 50 Ariz. 349, 72 P.2d 432 (Ariz. 1937)
• Parties: FRED ROWE, Petitioner, v. GOLDBERG FILM DELIVERY LINES, INC., Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents
• Court: Arizona Supreme Court

72 P.2d 432

50 Ariz. 349

FRED ROWE, Petitioner, v. GOLDBERG FILM DELIVERY LINES, INC., Defendant Employer, THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents

Civil No. 3878

Supreme Court of Arizona

October 11, 1937

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.

Messrs Cusick & Lyons, for Petitioner.

Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Industrial Commission, Respondent.

OPINION

LOCKWOOD, J.

This is an appeal from an award of the Industrial Commission hereinafter called the commission, denying Fred Rowe hereinafter called petitioner, compensation for an injury which it was alleged resulted from an accident arising out of and in the due course of his employment. It is the contention of the commission that the evidence does not show that the injury, which it is admitted was sustained by petitioner during the course of his employment, arose out of an accident. The matter is governed by section 1421, Revised Code 1928, which reads, so far as material, as follows:

"Every employee, hereinbefore designated, who is injured, and the dependents of every such employee who is killed, by accident arising out of and in the course of his employment, wheresoever such injury has occurred, unless purposely self-inflicted, shall be entitled to receive, and shall be paid such compensation... as are herein provided." (Italics ours.)

There is no doubt in the present case that the petitioner was injured while in the course of his employment. The question is whether he was injured "by accident arising out of... his employment." We have had occasion to consider what is meant by the phrase "injury... by accident," and particularly of the word "accident," in the case of Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017, 1021. After discussing very fully the English and American cases upon the subject, we held "there must have been (a) an unexpected event which was (b) the cause of an injury to the person" before compensation could be awarded, and that any injury which was merely the result of the usual, ordinary, necessary, and expected incidents of the employment was not compensable. In other words, an employee assumes the risk that, due to some peculiarity of his own physical condition, the usual, ordinary, and necessary work of his employment may cause him an injury. It is only when there is some unusual, unexpected, and extraordinary event not reasonably contemplated as a part of the normal conditions of the employment, which causes an injury, that compensation is awarded. The question then is, Was the injury, which it is admitted was suffered by petitioner while he was working in the course of his employment, the result of the ordinary, necessary, and expected incidents thereof, or was it caused by some unusual and extraordinary accident, no part of the usual course of the occupation?

The evidence may be briefly summarized as follows: Petitioner was a truckman employed by Goldberg Film Delivery Lines, Inc., hereinafter called the employer, and on the day the injury occurred he was engaged in transferring some packages from his truck into the truck operated by John E. Weinzapfel, in Tucson, Arizona, and while so doing suffered a spontaneous pneumothorax. So far there is no dispute as to the facts. Petitioner testified that he picked up two cans containing films and started to change them from their position in the truck, and, as he did so, the lid of one of the cans fell open and he slipped and fell, and as a result of such fall he sustained the pneumothorax. Weinzapfel testified that he was watching petitioner while he was shifting the film cans around, and that, as he picked up two of them, one of the lids snapped open and petitioner immediately straightened up and muttered something under his breath, and then complained of severe pains in his side. It is the contention of the petitioner that the accident out of which his injury arose was a slip or a fall due to the fact that one of the container cans fell open and jerked him down.

It is of course, true that if one engaged in the regular course of his occupation, which includes the moving or lifting of heavy weights, does accidentally slip and fall, and by reason of such slip of fall is injured, he is entitled to receive compensation under the act, for in such case ther is the unexpected event-- the slip or fall --...