Rehearing Denied June 21, 1955.
[79 Ariz. 90] John E. Madden, Phoenix, for petitioner.
Odin B. Dodd, Tucson, for respondents Mayme Z. Bajbek and Theresa Bajbek.
Donald J. Morgan, Phoenix, for respondent The Industrial Commission of Arizona, John R. Franks, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.
This case comes to us by certiorari to set aside an award of the Industrial Commission in favor of respondents, Mayme and Theresa Bajbek, wife and daughter respectively of decedent Joseph Bajbek. Ebasco Services, Incorporated, will hereinafter be referred to as the petitioner; The Industrial Commission as commission, and Mayme and Theresa Bajbek as respondents.
Deceased Bajbek was killed January 4, 1954, at about 8:05 a. m. in a one-car auto accident, while en route from his home in Tucson to a regular shift at employer's jobsite at the Red Rock steam plant about 32 miles from Tucson. Bajbek was paid the sum of $4.00 per day for travel expense.
The sole question presented is whether the commission erred in its findings that [79 Ariz. 91] death occurred by an accident arising out of and in the course of decedent's employment. In awarding respondents death benefits the commission found that the case came within the exception to the general rule of 'going and coming to work' which will be set out hereafter.
The pertinent facts are these: Petitioner was constructing a new electric steam plant in Red Rock. Like the vast majority of employees at the petitioner's plant, deceased lived in Tucson. There were no housing facilities at the plantsite, and the employees could live wherever they desired. At the time the accident occurred the petitioner provided no transportation facilities for its employees, therefore, each had to provide his own means of transportation from home to jobsite and from jobsite to home. There were six different trades working at petitioner's plant. Of the six trades involved only two, namely the boilermakers and electricians, had a clause in their union contract to receive travel expense to and from work. The decedent was a member of the electrical union.
The terms of decedent's employment were governed by the provisions of the collective bargaining agreement as amended between Local 570 of the IBEW (International Brotherhood of Electrical Workers) and the Arizona Chapter of the NECA (National Electrical Contractors Association).
The agreement, prior to amendments effective September 20, 1953, provided in part:
'A free zone shall be created in Tucson with the following boundaries: * * *.'
The agreement after making provisions for jobs within the free zone, then made the following provisions ...