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Pridgen v. Industrial Commission

Supreme Court of Arizona

May 1, 1950

PRIDGEN et al.
v.
INDUSTRIAL COMMISSION et al

Award set aside.

Conner & Jones, Tucson, for petitioners.

H. S. McCluskey, Phoenix, and Robert E. Yount, Phoenix, of counsel, for respondent.

Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concurring.

OPINION

Udall, Justice.

Petitioners, Elinor K. Pridgen and Deana Jo Pridgen, made application to The Industrial Commission of Arizona for compensation on account of the death of their husband and father, Joseph C. Pridgen. The latter, who was of the age of 29 years, met his death as the result of an accident on July 18, 1949. The decedent was then, and for some time previously had been, in the employ of respondents Wm. Fitchett and Eula Rebecca Fitchett, his wife, who were doing business in the City of Tucson under the trade-name of the Arizona Glass & Mirror Co. The respondent commission was insurance carrier for the employers. After a hearing the Commission determined that this was a noncompensable case. It drew a legal conclusion from the testimony [70 Ariz. 150] that there was no evidence that the personal injury by accident resulting in decedent's death arose out of and in the course of his employment and hence an award was entered on September 15, 1949, denying death benefits to petitioners, which award it affirmed on rehearing.

The sole assignment is that the Commission erred in finding decedent's death did not occur as the result of an accident arising out of and in the course of his employment for the reason that the undisputed evidence is all to the contrary. The proposition of law is advanced that where an employee is injured or killed while performing an act beyond the usual scope of his employment, which act is being done at the

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direction or request of his employer, then any resultant injury or death from an accident while so performing such act arises out of and in the course of his employment as provided for in section 56-931, A.C.A.1939.

The vital evidence in the case all came from the lips of a fellow employee, the employers and their manager son, Dan Louis Fitchett. In reality there is no conflict in the testimony to be resolved. Principally the question presented is whether there is any substantial evidence tending to reasonably support the legal inference or conclusion drawn by the Commission from these undisputed facts. For a comparable situation as to the state of the record see Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017 (syl. 1 & 2).

To determine the matter it is therefore necessary that we recite in some detail the facts developed at the hearing. The respondent employers in conducting their principal business in the city of Tucson, the nature of which is indicated by the tradename, employed several persons including decedent, his classification being that of journeyman glazier. The Fitchetts also owned and operated a small livestock ranch near Oracle, Arizona, some 30 miles north from Tucson. There were no resident employees working at the ranch and it was principally cared for by the owners with occasional help from their shop employees. The business of both the ranch and shop, however, was carried on from the same office in Tucson. At the time of the fatal accident the owners were absent on vacation and both the shop and ranch operations were being managed by their son, Dan Fitchett.

On the day preceding the accident, which was a Sunday, Dan Fitchett had been to the ranch where he discovered that a valuable colt (filly) had suffered a severe barbed wire cut on the throat. Alone, he was unable to get the animal into the corral. Upon returning to town he called a family friend who was well acquainted with horses and the latter advised him to contact a veterinarian to go to the ranch to treat the colt. This he did, making an appointment to meet the veterinarian at the ranch Monday morning at 10:00 A.M. Sunday night or early Monday morning it rained in Tucson and [70 Ariz. 151] when the men reported for work on Monday it was deemed inadvisable to proceed with the usual work of installing glass due to atmospheric ...


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