Sendejaz v. Industrial Commission
| Decision Date | 10 November 1966 |
| Docket Number | CA-IC,No. 1,1 |
| Citation | 420 P.2d 32,4 Ariz.App. 309 |
| Parties | Thane SENDEJAZ, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona and Arizona Biltmore Hotel, Inc. (Arizona Biltmore Hotel), Respondents. 87. |
| Court | Arizona Court of Appeals |
Donald J. Morgan, Phoenix, for petitioner.
Robert K. Park, Chief Counsel, by Joyce Volts, Phoenix, for respondents.
This is a writ of certiorari to review the lawfulness of an award finding that an injury sustained by the petitioner was not the result of an accident arising out of and in the course of petitioner's employment.
We are called upon to determine whether an accident sustained on the employer's premises by an employee, while off duty and on the way home, is an accident within and in the scope of the employee's employment under the Arizona Workmen's Compensation Act.
The facts necessary for a determination of this matter are as follows: Petitioner was a waiter employed by the respondent Arizona Biltmore Hotel in Phoenix, Arizona, during the winter season. His employment required that he work three split shifts; breakfast, lunch, dinner. The dinner shift commenced at approximately 5:30 p.m., and the petitioner usually worked until after 10:00 p.m., and sometimes as late as midnight. Petitioner was not required to live on the hotel premises, but he did so for convenience sake, and paid $50.00 per month as rent to the hotel which was deducted from his salary. Petitioner's wife and children lived in Buckeye, Arizona, more than 25 miles away. On 29 November 1964, at the close of the dinner shift, he decided to drive to Buckeye on his motor scooter to pick up some clean white shirts which we wore in the course of his employment. The hotel provided laundry facilities for the washing of petitioner's shifts, but he preferred to have his wife do his laundry.
Petitioner left the hotel on his motor scooter and while driving on a paved road owned and maintained by the hotel, the motor scooter hit a small rock on the road, or the brakes locked. In either case, he fell from the motor scooter. He suffered multiple injuries which resulted in the loss of the sight of one eye.
Following a hearing at which these facts were presented, the Commission issued a finding and award denying compensation, and after appropriate motions for rehearing, the petitioner sought a writ of certiorari in this Court to review the lawfulness of such award.
Our statute states that an employee is entitled to compensation if he is injured 'by accident arising out of and in the course of employment, wherever the injury occurred'. 23--1021, subsec. A, A.R.S. The term 'arising out of' indicates that there must be some causal connection between the injury and the employment. Generally, the so-called 'going and coming' rule, in the absence of special circumstances, excludes from workmen's compensation benefits an employee injured going to or coming from his place of employment. 8 Schnieder, Workmen's Compensation, § 1710, page 3. The rationale of said rule is that any risk to which the employee is exposed while going to or coming from work, he is not exposed to as an employee--or incident to his employment--but as a member of the general public. Thus, it has been stated:
'When an employee has finished his work and is on his way home, a mission of his own, and is injured at a place where he is not required to be by his employment, he is not within the provisions of the compensation law.' Richtarik v. Bors, 142 Neb. 226, 5 N.W.2d 199, 142 A.L.R. 881 (1942).
And:
'Such injuries do not arise out of and in the course of employment if they arise out of ordinary hazards of a journey and such hazards are faced by all travelers and which (sic) are unrelated to employer's business.' Barrington v. Johnn Drilling Co., 51 N.M. 172, 181 P.2d 166, 169 (1947).
This rule has proven to be unjust when applied to all cases to travel to and from the home of the employee and there are numerous exceptions to the rule, the most notable being the 'on premises' rule which can be stated thusly:
'In further clarification of the general rule it has been held that injuries sustained by an employee while going to or from his...
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...of Elks, 71 Ariz. 244, 226 P.2d 147 (1950), we rejected the on premises rule; and our Court of Appeals in Sendejaz v. Industrial Commission, 4 Ariz.App. 309, 420 P.2d 32 (1966) held that an employee who worked at the Arizona Biltmore Hotel and was injured while riding home on a motor scoote......
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...103 Ariz. 213, 439 P.2d 485 (1968); Hancock v. Industrial Commission, 82 Ariz. 107, 309 P.2d 242 (1957); Sendejaz v. Industrial Commission, 4 Ariz.App. 309, 420 P.2d 32 (1966). The 'going and coming' rule is subject to exceptions, Sendejaz v. Industrial Commission, supra, but before conside......