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Jones v. Industrial Commission

Supreme Court of Arizona

January 15, 1957

Bernice JONES, Widow, and Betty Ann Jones, Shirley Jean Jones, Carol Dean Jones, and Richard Allen Jones, Minor Children of Edgar Allen Jones, Deceased, Petitioners,
The INDUSTRIAL COMMISSION of Arizona, Insurance Carrier, and Arizona Highway Department, Employer, Respondents.

Page 278

[81 Ariz. 353] Locklear & Wolfinger, Prescott, for petitioners.

Robert K. Park, Phoenix, for respondent Industrial Commission. John R. Franks, Donald J. Morgan, and John F. Mills, Phoenix, of counsel.

UDALL, Chief Justice.

We issued certiorari, on petition of the widow and four minor children of Edgar Allen Jones, to review an award of the Industrial Commission of Arizona denying them death benefits under the Workmen's Compensation Act, A.R.S. § 23-901 et seq., for his death which they claim arose out of and in the course of his employment.

Edgar Allen Jones had been in the employ of the Arizona Highway Department for about three and one-half years prior to his death. All department employees are covered by compensation insurance carried with the State fund. We shall refer to the widow and minor children as petitioners, the highway department as employer and the Industrial Commission of Arizona as the commission or respondent.

[81 Ariz. 354] Decedent admittedly died from a coronary occlusion, and it is conceded by the respondent commission that his sudden collapse and death occurred while in the course of his employment, i. e., while engaged in the usual and normal performance of his duties with the employer. The narrow question presented is whether, within the meaning of our law, he sustained an injury by accident arising out of his employment that caused or contributed to his sudden death.

The facts, which are nowise in dispute, may be summarized as follows: on the morning of June 17, 1955, decedent, along with other members of the State's maintenance crew, was engaged in repairing pavement on the White Spar road approximately 12 or 13 miles south of Prescott. The work shift started at 8 a. m. at which time the crew assembled at the State Highway Yard in Prescott and they were then transported by the employer's trucks to the job site. Their assignment was to apply a light coat of oil to the existing highway surface, this application being made by means of a spray bar which is attached to the oil truck by a hose through which the oil flows under pressure.

The crew was then engaged in spraying oil for an overlay on a banked or 'supered' curve on the highway. The actual spraying operations began at about 9 a. m. and customary procedure was followed. On this occasion decedent held the spray bar and directed the spray while the hose was supported by a fellow employee, J. E. Hancock. The spray bar carried by decedent weighed 16 1/2 pounds. This oiling operation required decedent to walk rapidly from side to side and backward on the portion of the road being sprayed. They had been at this work for a period of from four to five minutes, and had sprayed a section of road approximating 75 to 100 feet in length and from nothing to a point approximately 20 feet in width, when decedent Jones collapsed and fell. His associates on the job, who were eyewitnesses to all that occurred, were of the opinion that decedent had slipped on a loose rock or a patch of oil which had leaked from the hose, and it appeared to them that as he started to fall he was trying to right himself.

The witness Hancock, who had been supporting the hose, testified in part:

'* * * when I glanced back, Mr. Jones was falling. I dropped the hose and grabbed for him, but he had already hit the pavement on his left hip and butt. But I did catch him before his head hit the pavement, laid him down and turned the oil off. * * *.'

The spray bar did not drop to the ground but came to rest across decedent's lap First aid was administered but to no avail; decedent never regained consciousness. [81 Ariz. 355]

Page 279

An ambulance was immediately radioed for and he was taken to the hospital in Prescott. Dr. McNally's initial report recites: '* * * This man * * * was dead upon arrival. No external evidence of trauma was observed.' An autopsy was performed upon the body the following day by Dr. William Marlowe; details as to his findings will be set forth later.

Within ten days after her husband's death the widow, in behalf of herself and minor children, made claim for death benefits. Upon the basis of the record then before it the commission made findings that (a) the decedent died as a result of coronary thrombosis, (b) the disability from which he died was not the result of an injury by accident arising out of and in the course of his employment, and (c) the petitioners were not entitled to death benefits. A petition for rehearig was filed and granted. A full hearing was then held, whereupon the commission entered an order affirming the previous findings and award. Therein it was found that Edgar Allen Jones died 'as a result of a preexisting heart condition'. Petition for certiorari was timely filed and the matter is now before us for review.

The single assignment is to the effect that it was error to deny petitioner's claim for death benefits for the reason that the proof established the fact that death of decedent was caused by an accidental injury arising out of and in the course of his employment. Petitioners place great reliance upon the legal principles enunciated in Phelps Dodge Corporation v. Cabarga, 79 Ariz. 148, 285 P.2d 605, 608, in which they assert a parallel fact situation existed. This test was laid down in that case, viz.:

'* * * when usual exertion leads to something actually breaking or letting go with an obvious sudden organic or structural change in ...

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