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Buick v. Industrial Commission

Supreme Court of Arizona

April 2, 1957

James Howard BUICK, Petitioner,
v.
The INDUSTRIAL COMMISSION of Arizona, Defendant Insurance Carrier, and City of Phoenix, Defendant Employer, Respondents.

[82 Ariz. 130] Alfred B. Carr, Phoenix, for petitioner.

John R. Franks, Phoenix, Donald J. Morgan, Robert K. Park, Phoenix, and James D. Lester, Tucson, of counsel, for respondent Industrial Commission.

DUALL, Chief Justice.

Review by certiorari of an award of respondent, The Industrial Commission of Arizona, denying compensation to petitioner James Howard Buick. The sole issue presented

Page 258

is whether the facts show an injury by accident arising out of and occurring in the course of his employment.

The facts leading up to the accident are mowise in dispute. On and prior to March 5, 1955, petitioner was a police patrolman of the city of Phoenix, then working the hours from 6 a. m. to 2 p. m. Following completion of his shift of duty, he went home and changed from his uniform to civilian clothes. There he met his wife and child and also some friends by the name of Porter, and it was decided that the party go up to Squaw Peak, which is outside the city limits, to have a picnic or barbecue. Petitioner carried with him on this trip a .22 automatic pistil, which was not the type of regulation pistol used while on patrol duty. In response to a question on the workman's report of injury and application for benefits under the workmen's compensation law (filed on March 2, 1956), viz.:-'State Fully how accident occurred and describe nature and extent of injury'-petitioner gave the following graphic account of the accident, which statement also incorporates his theory of why compensation should be allowed:

'I was 'off duty' on a picnic, building rock fireplace. When I stooped to put rock in place, pistol fell out of holster, struck on rock and discharged. Bullet strcuck me in right chest, went through body, severed spinal chord (sic) and lodged in chord (sic) in center of back. As a city police officer and a county deputy sheriff I was responsible, when 'off duty', for taking proper police action on any matter coming to my attention[82 Ariz. 131] at any time, and was required to be armed at all times in order to carry out that responsibility. I am permanently paralyzed from the waist down.'

The City of Phoenix, acting through its chief of police, took the position that the injury to petitioner, having been sustained while he was off duty picnicking, did not arise out of or in the course of his employment as a police partolman; hence, it not being an industrial accident, the city refused to file an employer's report with the commission. Police Chief Thomas incorporated in his letter to petitioner's attorney this statement:

'I have no knowledge of Mr. Buick being commissioned as a Deputy Sheriff for Maricopa County and if he was, this was done entirely of his own volition without any requirement of his job or knowledge of the Police Department.'

On this record the respondent commission found it to be a noncompensable claim and on Marcy 9, 1956, entered its award that claimant take nothing. Application for rehearing was granted and a full hearing was held at which numerous witnesses testified. Thereafter, on July 16, 1956, a decision upon rehearing was entered. This reaffirmed the previous award denying compensation upon the grounds that the injury-admittedly sustained by petitioner-did not arise out of or in the course of his employment. We granted certiorari to review this award. Resourceful counsel has presented some novel contentions as to why compensation should be allowed, but basically the determinative question is that previously stated.

The city of Phoenix police manual was admitted in evidence and petitioner places great reliance upon the following provision:

'Section 1600.5-Off Duty Service Requirements. Officers shall have regular hours assigned to them for active duty and when not so employed shall be considered 'off duty'. They shall, however, be subject to duty as needed. When 'off duty' they shall be responsible for taking proper police action on any matter coming to their attention at any time. This rule shall not apply to minor traffic violations.'

From this is it argued that police officers are required to be armed at all times and that their duties are not limited to activities within the city limits of the municipality by which they are commissioned. With this as a premise it is then contended that the injury in question arose out of and in the course of his employment because it

Page 259

had its origin therein, was a result of a risk inherent in the employment, was connected with had reasonably incident to such employment, and flowed therefrom as a natural consequence. Petitioner has cited no text [82 Ariz. 132] statement or reported case with facts ...


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