Annie Pauline PINSON, for herself and on behalf of Jimmy Gordon Pinson and Charles Robert Pinson, Minors, Petitioner,
The INDUSTRIAL COMMISSION OF ARIZONA and B. F. Hill, A. R. Kleindienst and F. A. Nathan, as Members thereof, and Joe Tooley Produce Company, Inc., a corporation, Respondents.
[79 Ariz. 22] Harold A. Beelar, Globe, and Jack C. Cavness, Phoenix, for petitioner.
John R. Franks, Phoenix, Atty. for respondent The Industrial Commission of Arizona, Donald J. Morgan, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.
This is a review by certiorari of an award entered by respondent Industrial Commission of Arizona denying widow's and dependents' claim for death benefits.
The facts surrounding and leading up to the death of William Gordon Pinson, deceased (the husband and father of petitioners) fairly stated are as follows: Pinson, aged 39 years at the time of his death, was a resident of Winkelman, Arizona, and for some nine years prior thereto had been self-employed as the owner of an ice delivery business in the Hayden-Winkelman-Tiger-Mammoth area. He had an ice-storage house next to his home in Winkelman and the bulk of deliveries of ice were made from there by his employee who ran an ice route serving customers in that area. In addition to, and in conjunction with his ice business, he had been for approximately four years preceding his death, an employee of respondent employer, Joe Tooley Produce Company, Inc., of Tucson, in the same general area as that covered by his ice business. No question is raised as to the employee status of Pinson and it is conceded that this employer knew that he was engaged in the ice business and consented to his participation in that business.
Pinson's duties as an employee of the Produce Company consisted of solicitation of produce orders, delivery of same and the collection of money therefor. The two occupations were harmonious in that Pinson purchased the ice required for his independent[79 Ariz. 23] business in Tucson and the produce orders delivered by him were also picked up at his employer's establishment in Tucson. The employer paid him a flat commission of ten percent of the gross produce sales, which was seven to seven and one-half percent more that the usual commission allowed to others, this for the reason that Pinson used his own truck in making deliveries in addition to soliciting produce orders and collecting for them.
In the main, Pinson made deliveries of produce on Monday, Wednesday and Friday of each week, with Friday as the biggest delivery day. By reason of his dual pursuits he made a trip to Tucson nearly every day, and as a general rule he transported larger quantities of ice from Tucson on Tuesday, Thursday and Saturday, and lesser amounts, because of increased produce business, on the other three week days. The record is replete with evidence that decedent, an experienced produce man, at all times endeavored to meet the needs of his customes and he was continually soliciting produce orders irrespective of the hour or day of the week though the major soliciting occurred as stated on Tuesday, Thursday and Saturday. Pinson did not operate on any time schedule and it was his practice to solicit produce orders late in the evening. These orders were then phoned in from his home in Winkelman to his employer between 6:00 and 7:00 a. m. on the day the order was to be picked up. Part of his work for the employer was done at his home. Orders were written up there and customers phoned his home in the evening to place orders for the next day; in turn, as stated, from there orders were relayed to his employer in Tucson.
The customers served by Pinson were in the San Pedro River Valley; in the main they lived in the towns of Tiger, Mammoth, Winkelman and Hayden. The latter three towns are located on State Highway 77 which is the only highway serving those communities. Tiger is a short distance off this highway, southwest of Mammoth, and Hayden is some two miles beyond Winkelman.
Mr. Pinson met his death by the overturning of his truck on the main highway in a one-car accident approximately four miles south of Winkelmen, on Thursday, November 5, 1953, at about 8 p. m. There were no eye-witnesses to the accident. His movements that day, insofar as they can be pieced together, are as follows: He left home early that morning on his daily trip to Tucson, driving a 1 1/2-ton Chevrolet panel truck. His first recorded stop was at the Davis Mammoth Mercantile Company where he picked up a produce order. He then proceeded on to Tucson where he evidently spent the major portion of the day. He there purchased and loaded in his truck 6600 pounds of ice and picked up produce to fill the order obtained that morning in Mammoth. The only record of produce delivered to Pinson by his employer on that day was the Davis order. The hour he left [79 Ariz. 24] Tucson is not shown but it is known that he arrived back in Mammoth sometime between 5:00 and 6:00 p. m., where he delivered the Davis Shipment and collected the sum of $26.03. This same establishment gave him a box of pears that were bad, which according to its custom Tooley's would replace, and in addition they gave to Pinson a produce order for delivery the following day. There is some conflict as to whether Pinson also delivered that evening a produce order to Barbara's Cafe in Mammoth. So far as is definitely known there were no other stops made by decedent between Mammoth and the spot, 16 miles north, where he met his death though there was some hearsay testimony that he had stopped enroute at a gas station for truck repairs. However, it is known that according to custom he would in all probability have contracted at least two customers for orders upon returning home that evening, i. e., the manager at Quarelli's Store in Winkelman and the Hayden Cafe in Hayden.
As an independent merchant Pinson was self-employed and was not covered under the terms of the Workmen's Compensation
Act, A.C.A.1939, § 56-901 et seq. His employer Joe Tooley Produce Company was properly covered under the Act with the State Fund as the insurer. Admittedly the liability of the insured employer extended only to Pinson's pursuits in the interest of the Produce Company for in nowise would such employer be liable for Pinson's independent activities in the ice business.
Based upon the reports submitted to it, the Commission by applying the so-called 'time of the accident' rule found in effect that Pinson at the time of his death was pursuing the interests of his independent ice business and that he was not then and there engaged in any pursuit for the Joe Tooley Produce Company. An award was therefore entered denying widow's and dependents' claim for death benefits. Motion for rehearing was filed and granted. Two hearings were thereafter held, the one at Hayden and the other at Tucson, where the applicant was accorded an opportunity to present her evidence. Thereafter, a decision upon rehearing was rendered by which the Commission in all respects reaffirmed its previous award, and this petition for review followed.
The assignments of error in substance are that the findings made by the Commission to the effect that decedent did not meet his death by an accident arising either out of or in the course of his employment by the Tooley Produce Company are contrary to the law and the evidence.
In support of these assignments of error petitioner invokes the 'going and coming' rule, as recognized by this court in the cases of Harris v. Industrial Commission,72 Ariz. 197, 232 P.2d 846, and Martin ...