Certiorari from Industrial Commission.
Proceeding under the Workmen's Compensation Act, Code 1939, § 56-901 et seq., by Phillip Linsay, claimant, opposed by the Goodyear Aircraft Corporation, Arizona Division, a corporation, employer, to recover compensation for injuries sustained by claimant while making a personal souvenir in employer's plant. To review an award in favor of the claimant by Ray Gilbert and others, as members of and constituting the Industrial Commission of Arizona, the employer brings certiorari.
Award set aside.
Moore, Romley & Roca, of Phoenix, for petitioner.
H. S. McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for respondent Industrial Commission.
Minne & Sorenson, Charles N. Ronan, William H. Burrus and Kenneth C. Chatwin, all of Phoenix, for respondent Phillip Lindsay.
Udall, Judge. Stanford, C. J., and La Prade, J., concur.
[65 Ariz. 381] For more than three years prior to the injury in question Phillip Lindsay (hereinafter referred to as the claimant) had been an employee of the Goodyear Aircraft Corporation, Arizona Division. This corporation (petitioner, herein referred to as the employer) carried workmen's compensation insurance with the State Fund administered by the Industrial Commission of Arizona. During the war period the employer was operating under a cost plus a fixed fee contract with the Bureau of Aeronautics of the United States Navy engaged in the modification of naval aircraft flown to its plant near Phoenix. Under its contract the employer was required to keep on hand at all times a constant minimum labor force of from 900 to 1300 men, notwithstanding that by reason of unpredictable delays on the part of the Navy Department, many of the employer's [65 Ariz. 382] modification workers from time to time were not actually engaged in any productive work for the benefit of either the employer or the United States. These idle time periods materially increased after V-J Day. The workers, however, were paid for idle time and, in turn, the employer received reimbursement from the government according to the terms of its contract.
When the claimant reported for work with the swing shift at 3:30 P.M. on November 15, 1945, his foreman advised his crew that due to the delay in the arrival of a ship there would be no work to be done for some five hours. During this idle time period the claimant, on his own account, undertook the manufacture of a souvenir
in the form of a cigarette lighter, using for that purpose a supposedly discharged 50-caliber machine gun shell which he had gotten from a scrap box in the modification building. None of his duties bore any relationship to such machine gun shells which were the property of the United States. In order to fabricate the shell into a lighter, Lindsay retired alone into the hydraulic room and there used a hand drill and vise which were the property of the employer and which he was authorized to use in connection with his usual modification duties. Unfortunately, this shell contained a live cap which, in the operation, exploded causing an injury to claimant's left eye. The accident occurred at about 6:40 P.M.
Notwithstanding the employer's rules against the use of idle time for the fabrication of personal souvenirs, it was a fairly widespread practice among modification workers to use company machines during their idle time for the making of such gadgets. The Commission found that such rules were honored primarily by their violation and that said violation was with the knowledge of agents and supervisory employees of the Company. There is ample testimony in the ...