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Daum v. German

Supreme Court of Arizona

December 11, 1950

DAUM
v.
GERMAN et al

Award set aside.

Leonard S. Sharman, Phoenix, for petitioner.

Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission.

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

OPINION

Stanford, Justice.

[71 Ariz. 176] On Saturday, August 20, 1949, this petitioner, Ernie Daum, with Paul Henshaw and Rush Alexander, came to Casa Grande from a mine, some 42 miles south of that place, where they had been engaged in a mining operation.

Russell F. German, defendant-employer herein, conducted a large store on the outskirts of Casa Grande, and prior to the 20th of August, German had approached this petitioner on two different occasions for the purpose of hiring him to work on a building which German was erecting adjacent to his store and also to work on his trucks. The testimony shows that petitioner herein was qualified as a carpenter and a mechanic.

On the evening of Saturday, August 20th, while petitioner was at the store, he informed German that he was not satisfied with the mine operations and asked if he still had a job for him, and German told him to start to work Sunday, August 21st, as a carpenter on his new building. Petitioner had made arrangements to return to the mine that night and get his clothing and personal effects, but while still in the store, someone came and reported to German that one of his trucks was off the road about two miles out on the highway known as the Chu Chu Road. Testimony shows that German then asked petitioner if he wanted to get in a couple of hours of work that night by going out to assist in getting the truck, and he agreed to go.

Rush Alexander and Paul Henshaw were both in the store at that time and German asked Alexander to assist in getting the truck. They then proceeded to get another truck belonging to German to go to the scene, but because the lights on the truck would not operate, German arranged for the pick-up truck belonging to Paul Henshaw.

The disabled truck was found resting on a bridge crossing an irrigation ditch, with two wheels on and two wheels off. The front end of the disabled truck was chained to the rear of the Henshaw truck, and by a series of jerks, it was dragged across the bridge and back on to the road.

When the trucks were chained together, petitioner and others got into the rear of the pick-up, for the purpose of holding it down. As the disabled truck was jerked on to the road, it rolled ahead, striking the rear of the pick-up. Petitioner was

Page 40

then thrown, or fell off, and as the disabled truck came ahead the second time, [71 Ariz. 177] its right front wheel rolled over him, ...


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