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Nicholson v. Industrial Commission

Supreme Court of Arizona

July 13, 1953


Page 548

[76 Ariz. 106] Townsend & Jenckes, Phoenix, for petitioner.

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

LA PRADE, Justice.

This proceeding calls for a review of an award of the Industrial Commission of Arizona, refusing to grant compensation for the death of an employee whose [76 Ariz. 107] employer was subject to the provisions of the Workmen's Compensation Act, A.C.A.1939, § 56-901 et seq., and insured thereunder. The claim for compensation was presented by the surviving widow.

The deceased employee, Floyd E. Nicholson, was employed by the Christenson Construction Co., Inc., as a 'grizzly man' in its operation in quarrying and crushing building material called 'tuff', used in the manufacture of building blocks. This mining operation was carried on out on the open desert near Apache Junction, east of Mesa, Arizona. The tuff material, after being 'sized' at the grizzly, was crushed to a certain fineness and then conveyed by a belt conveyor up to the top of a loading platform from which it was taken by trucks that were driven under the platform and loaded through doors which permitted the material to drop down into the trucks. The area under the platform into which the trucks were driven was about 11 feet wide and 29 feet long. The ceiling of the platform was about 12 feet above the ground and was supported by railroad rails set crosswise on top of which heavy planks were laid. About midmorning of the day of the accident one of the rails in the ceiling gave way on account of the weight of materials superimposed upon it.

The structural defect was temporarily shored up but was considered of such consequence that it was deemed advisable not to place any more material on the platform until adequate repairs could be made. The temporary repair was completed about 50 minutes before noontime, at which time the employees were told not to return in the afternoon for work but to return the following morning, giving time to repair the platform. Due to the location of the premises, there being no restaurants nearby, the employees were accustomed to bring their lunches with them and which, with the knowledge and consent of the employer, they customarily ate in the tunnel area underneath the loading platform, which furnished the only shade in this desert area during a period of extreme heat (date of accident July 24th). About 20 minutes after the noon hour, deceased and other workmen were eating their lunch under the platform and while so engaged the roof collapsed covering them with great quantities of material--so much, in fact, that three of them lost their lives.

The Commission, in view of the fact that the workday had unexpectedly come to an end at the noon hour, coupled with a layoff order, determined that the relationship of employer and employee had ceased at 12 o'clock sharp, and that the injury and resulting death did not arise out of and in

Page 549

the course of the employment and hence was not compensable. The correctness of this determination presents the occasion for this review.

That the deceased lost his life by accident no one questions, but did it arise out of his employment and in the course of his employment? The words 'in course [76 Ariz. 108] of' relate to the time, place and circumstances of the accident. The words 'arise out of' refer to the origin of the cause and are descriptive of its character. One text-writer has said:

'Reams have been written undertaking to define and apply the simple, expressive requirement of the statutes that, in order to be entitled to compensation, an employee must have received 'a personal injury by accident arising out of and in the course of his employment''. Schneider, Workmen's Compensation Law, Vol. 6, p. 4.

Mr. Arthur Larson, of the Wisconsin bar, and Professor of Law at Cornell Law School, in his recent work entitled 'The Law of Workmen's Compensation' (1952), Vol. 1, p. 42, says:

'Few groups of statutory words in the history of law have had to bear the weight of such a mountain of interpretation as has been heaped upon this slender foundation.'

With these observations we must concur. The words 'arising out of' and 'in the course of' appear in practically all of the Workmen's Compensation Acts in the United States, and constitute the basic coverage formula. Perhaps it is not amiss to surmise that it is out of the voluminous interpretations and definitions that confusion has arisen, rather than in the simple and expressive words themselves.

All the cases and tex-writers on the subject acknowledge that categorical tests or rules have not yet been invented or stated which can be applied in this everchanging industrial world to determine whether any particular accident arises out of and in the course of employment. This court early recognized that each case must be determined on its own peculiar facts before any attempt is made to apply tests. Ocean Accident & Guarantee Corp. v. Industrial Comm., 1927, 32 Ariz. 265, 257 P. 641, 643. We feel that any attempt to determine whether a particular injury arises out of and in the course of employment should only be made by a judging body which is constantly aware of the basic concept of the nature and philosophy back of workmen's compensation. This court, from the inception of the Workmen's Compensation Act in this state, when called upon to interpret its terms, has consistently recognized the act to be remedial and that its terms 'should be given a liberal construction, with a view of effectuating their evident purpose of placing the burden of injury and death upon industry'. Ocean Accident & Guarantee Corp., supra; Krupp v. J. C. Penney Co., 1938, 51 Ariz. 228, 75 P.2d 692; Mountain States Tel. Co. v. Industrial Commission, 1944, 61 Ariz. 436, 150 P.2d 355; Melendez v. Johns, 1938, 51 Ariz. 331, 76 P.2d 1163. (See dissenting opinion J. Lockwood for excellent review of background of our law and the evils which it was designed to remedy.)

Having early recourse to the factual situation of each case has led some legal [76 Ariz. 109] minds to conclude that compensation law has grown up around ...

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