Serrano v. Industrial Commission

• Decision Date: 11 May 1953
• Docket Number: No. 5746,5746
• Citation: 256 P.2d 709,75 Ariz. 326
• Parties: SERRANO v. INDUSTRIAL COMMISSION et al.
• Court: Arizona Supreme Court

Page 709

256 P.2d 709

75 Ariz. 326

SERRANO v. INDUSTRIAL COMMISSION et al.

No. 5746.

Supreme Court of Arizona.

May 11, 1953.

J. Hubert Smith, of Phoenix, for petitioner.

Robert E. Yount, Phoenix (Perry M. Ling, Robert W. Pickrell and Donald J. Morgan, Phoenix, of counsel), for Industrial Commission.

PHELPS, Justice.

Everado Serrano, hereinafter called petitioner, sustained an injury in an automobile accident while enroute from Davis Dam where he was employed by Grafe-Callahan Construction Company, to his home in Kingman. The employer will hereinafter be referred to as respondent, and the Industrial Commission as commission. Petitioner filed his petition with the commission for compensation for the injury sustained which was denied and the case comes to us on certiorari.

The facts are that petitioner had begun work for respondent at Davis Dam at 12:30 a. m. on May 23, 1952, the morning of the injury on what is known as the 'graveyard shift' and was off duty at 8:00 a. m. He went directly to the office of the company in Bullhead City to sign certain papers required by the company. Immediately thereafter petitioner and Richard Nardina and L. D. Lynch left for Kingman where petitioner resided, and when they had reached a point a little over half way to Kingman petitioner who was driving his father's truck, 'dozed off' and the truck went off the road turning over, fatally injuring Nardina and so injuring and mangling petitioner's arm that it had to be later amputated.

Petitioner was employed as a common laborer and received $1.77 per hour for seven hours' work. He was allowed, in addition thereto, pay for one hour in the nature of a bonus as an incentive to work the so-called 'graveyard shift'. He was also paid an additional 'amount each day equal to one hour's pay for travel and subsistence expense.'

Sometime between October, 1951, when respondent began its cleanup work at the Dam and December of that year the Building and Common Laborers' Union at Las Vegas, Nevada, Local 872 representing other unions involved including Local 383 of Kingman, Arizona, (whose business agent had placed petitioner on the job with respondent), made demand upon respondent for travel pay. Another contractor had complied with a similar demand made by the Teamsters & Laborers Union but respondent refused to comply with the demand made upon it on the alleged ground that it would be illegal because it had not been approved by the Construction Industry Stabilization Commission at Washington. The respondent, however, refused to join with the union in a petition to the Stabilization Commission for its approval. Thereupon the Las Vegas Union called a strike in December, 1951. Thereafter as a result of the called strike, respondent joined in a petition with the union to the Stabilization Commission for its approval of travel pay for all employees. The Stabilization Commission, on April 4, 1952, granted the approval in the following language, insofar as is pertinent to this case:

'On the basis of the facts submitted, the Construction Industry Stabilization Commission has voted to authorize establishment of the following practice, only on the type of construction specified and for the job classifications and project shown below:

'Project:

'Davis Dam Area--work on Nevada and Arizona sides of Colorado River Project; Completion of Davis Dam Spillway Stilling Basin as per contract awarded by United States Department of Interior, Bureau of Reclamation.

'Heavy construction.

'To pay to each employee, as an allowance for travel and subsistence expense, and in lieu of any other provision for travel or subsistence, an amount equal to one hour's pay at such employees' straight time rate for each day worked by such employee, such payment to be effective from the start of the project work and to continue for the duration of project work. Such allowance is to be paid to teamsters and laborers and any other crafts employed on the project for which a payment in like or greater amount has not been heretofore established pursuant to Section 4(3) of Construction Industry Stablization Commission Regulation 1. (Emphasis supplied.)

'The decision may be made retroactive to October 31, 1951.'

Gordon L. Wallace, the business agent for Local 383 at Kingman, testified that he had worked at the Dam off and on since 1947. He further testified that according to union rules, any job over 25 miles from the hall from which the men are hired entitles them to common carrier pay to the job; if over 50 miles they are entitled to a half day's pay and common carrier pay, and if over 150 miles from the job they are entitled to a full day's pay plus common carrier pay. This union rule, he said, is the basis for charging travel pay where the men have to travel 32 to 35 miles a day so that they would, be they means, overcome their expenses for travel. He said, 'The job was not set up with a housing, board or lodging or anything like that. That was one of our main reasons for getting the travel time.'

The record does not contain the petition to the Construction Industry Stabilization Commission but this statement of the witness Wallace was not denied and we must assume that it is true.

The petitioner contends that the commission erred in finding that the injury did not arise out of and in the course of petitioner's employment and in denying him benefits for the reason that neither the finding of fact nor the award are supported by the evidence or the law.

Specifically the question presented is: Was the petitioner injured by accident arising out of and in the course of his employment? If so, the finding and award of the commission must be set aside. Otherwise it should be upheld.

It is the general rule that injuries...