STRAUSS et al.
Rehearing Denied March 4, 1952.
Award set aside.
John W. Ross, Tucson, for petitioners.
Robert E. Yount, Phoenix, H. S. McCluskey and Robert W. Pickrell, Phoenix, of counsel, for respondent Industrial Commission.
La Prade, Justice. Udall, C. J., and Stanford and De Concini, JJ., concurring. Phelps, Justice (dissenting).
La Prade, Justice.
[73 Ariz. 286] This proceeding is before us on certiorari to review an award of the Industrial Commission of Arizona denying the claim of the widow and minor children for death benefits under the provisions of the Arizona Compensation Act. A.C.A.1939, § 56-901 et seq. The finding of the commission was that the death of the deceased employee (husband and father) was not caused by injury arising out of and in the course of his employment. The factual situation concerning the employment arrangement must be carefully considered and for this reason will be more particularly set forth:
The employer, Seymour Roth, was in the used car business on South Stone Street in Tucson, Arizona, the place of business being a few blocks south of Broadway. The evidence discloses that the owner, Mr. Roth, paid little or no attention to the business except in a supervisory capacity. The deceased, Anton Strauss, was the sole employee [73 Ariz. 287] and in such capacity was general manager, and as such bought, sold and traded cars as his judgment dictated. He took care of all the banking operations, transfers of title, liens, etc., with no regular hours of employment. He usually reported to the lot around 9 o'clock in the morning and stayed until 9 or 9:30 at night. Oftentimes the business required the repossession of cars which required him to work at nights and be away from home. His place of residence was approximately five miles from the place of business. In order to go to and from his home, he was permitted to use any of the cars on the lot belonging to the employer. His contract of employment called for a weekly wage of $ 50 and "a percentage of the used car sales at the end of the year if he would agree to work for $ 50.00 a week in the meantime." The evidence does not disclose what this percentage was to be or when it was to start. The wife of deceased testified that
Mr. Strauss was supposed to work six and one-half days per week but due to the nature and demands of the business that Mr. Strauss was seldom able to leave his employment until late Sunday afternoons. Due to the fact that the owner did not come to the premises on Saturday, Mr. Strauss found it necessary to enlist the services of his wife who usually came to the premises on Saturdays and assisted in the banking operations, running business errands, interviewing customers, etc. Neither Mr. nor Mrs. Strauss received any compensation for the services of Mrs. Strauss. On the Saturday, the day of the fatal accident, Mrs. Strauss came to the premises at about 10 o'clock in the morning and brought some of their children, who on becoming restless were sent home. Later in the afternoon she returned to the home and again brought the children back with her. Due to the exigencies of the business situation, neither she nor Mr. Strauss were able to leave the premises until approximately 8:30 p. m. at which time they left in a car belonging to the employer.
During the day Mr. Strauss had made an engagement with a Mr. Orean to talk over with him some complaints that Mr. Orean had made concerning a truck that he had previously purchased from the employer through Mr. Strauss. It was contemplated that this engagement was to lead to a settlement or the taking back of the truck and selling a new unit to Mr. Orean. This meeting was to take place at 9:30 p. m. at the home of Mr. Orean which was within a block or so of the home of Mr. Strauss. At the time that Mr. and Mrs. Strauss left the place of employment, Mrs. Strauss realized that she had failed to purchase groceries for the following day, Sunday. They determined to and did then drive north on Stone Avenue to Speedway which is approximately a mile north of Broadway. They then proceeded east on Speedway, a distance of more than three miles to a market where Mrs. Strauss [73 Ariz. 288] purchased groceries. While in the market, Mr. Strauss met and talked to a business acquaintance. As a result of this meeting, they agreed to meet at the employer's place of business the next morning at 8:30 for the purpose of negotiating a car deal. On leaving the market, Mr. and Mrs. Strauss continued east on Speedway to Alvernon Road and then turned south. The place of the accident was about half-way between Broadway and Speedway at the intersection of Alvernon with Fifth Street. Had the accident not occurred, Mr. Strauss would have proceeded some five blocks to Broadway and continued on south approximately ten blocks to Montecito and thence east a block or two to where he lived.
It is the position of the commission that Mr. Strauss had abandoned his employment and was on a mission of his own at the time of the accident. Its contention is that Strauss at the place of the accident was five blocks north of where he should have been had he taken the most direct route home.
Petitioners' contention is that the findings and order of the commission are not supported by the evidence and are contrary to a ...