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Peter Kiewit Sons' Co. v. Industrial Commission

Supreme Court of Arizona

July 6, 1960

PETER KIEWIT SONS' CO., a corporation, Petitioner,
v.
INDUSTRIAL COMMISSION of Arizona, and Fred W. Alexander, Respondents.

Page 29

[88 Ariz. 166] Evans, Kitchel & Jenckes, Earl H. Carroll and L. Ray Haire, Phoenix, for petitioner.

Frances M. Long, Phoenix, for respondent, Industrial Commission.

Minne & Sorenson, Phoenix, for respondent, Fred W. Alexander.

BERNSTEIN, Justice.

In this certiorari proceeding Peter Kiewit Sons' Co. (hereinafter called the 'Company') seeks to set aside an award of The Industrial Commission of Arizona (hereinafter called the 'Commission') which found that on May 29, 1958, Fred W. Alexander (hereinafter called the 'Claimant') sustained a personal injury by accident arising out of an in the course of his employment with the Company. The injury resulted from an assault committed on Claimant by a third person not in the employ of the Company. As Claimant has filed an election under A.R.S. § 23-1023 'to pursue his remedy against such other person,' the Commission made no findings on the extent of Claimant's injuries or the amount of compensation to which he may be entitled. The sole issue presented is whether the injuries resulted from an 'accident arising out of and in the course of his employment' (A.R.S. § 23-1021).

[88 Ariz. 167] On May 29, 1958, Claimant was employed by the Company as a cement finisher on a construction project on Highway 66 just east of Flagstaff, Arizona. His work day ran from 6:00 A. M. to 2:00 P. M. Shortly before 2:00 P. M. a highway inspector employed by the State Highway Department told Claimant that he was performing his work in a faulty manner and, after a verbal dispute arose between the two, the highway inspector requested the lead foreman to discharge Claimant. The lead foreman thereupon discharged Claimant and told him to wait in his car for his check which would be brought out to him.

At this time Claimant's car was about 80 feet away, 'kind of angling' across the highway, where Claimant's wife had parked it to pick up her husband at the end of the work day. Claimant walked to his car, put up his tools, and waited for his check. A few minutes later the general foreman arrived on the scene and, after being met by Claimant, told him to get his check at the Company's office which was located in a trailer court a short distance away.

Claimant thereupon returned to his car, but before he was able to drive away, the highway inspector, accompanied by an armed State highway patrolman, approached the car and started 'talking ugly' in front of Claimant and his wife. The highway inspector told Claimant to get out of the car. Claimant did so, and was struck several times and knocked down by the inspector, thereby receiving the injuries which are the subject of this claim.

It is clear and, indeed, the Company concedes that the fact that Claimant's injuries resulted from an assault committed by a person not in the Company's employ, does not, of itself, render these injuries

Page 30

non-compensable. A.R.S. § 23-901, subdivision 8, provides:

"Personal injury by accident arising out of, and in the course of employment' includes an injury caused by the wilful act of a third person directed against an employee because of his employment * * *.'

See also, 1 Larson, Workmen's Compensation, § 11.

The Company claims, however, that Claimant's injuries are not compensable because the assault or 'accident' did not arise out of and in the course of his employment. The Claimant and the Commission urge that the findings of the Commission are supported by competent evidence and should be affirmed.

Under A.R.S. § 23-1021 an employee who is subject to the provisions of the Workmen's Compensation Law is entitled to compensation for injuries resulting from an accident, or, as here, an assault, 'arising out of and in the course of his employment.' The meaning and [88 Ariz. 168] scope of these terms have on several occasions been defined by this Court.

In Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 382-383, 181 P.2d 624, 626, it was stated:

'Both the elements 'arising out of' and 'in the course of employment' must coexist at one and the same time in order that an award be sustained. Pacific Fruit Exp. Co. v. Industrial Comm., 32 Ariz. 299, 258 P. 253, 55 A.L.R. 975; Brady v. Oregon Lumber Co., 117 Or. 188, 243 P. 96, 45 A.L.R. 812. 'The expressions 'arising out of' and 'in the course of' the employment are not synonymous; but the words 'arising out of' are construed to refer to the origin or cause of the injury, and the words 'in the course of' to refer to the time, place, and circumstances under which it occurred. An injury which occurs in the course of the employment will ordinarily, but not necessarily, arise out of it, while an injury arising out of an employment almost necessarily occurs in the course of it.' 71 C.J. 644.'

In Sears, Roebuck & Co. v. Industrial Commission, 69 Ariz. 320, 324, 325, 213 P.2d 672, 674, this Court said that 'in the course of employment' refers to the 'time, place, and circumstances under which it [the accident] occurred; i. e. coincident with the employment'; whereas the term 'arising out of' employment refers to 'the origin or cause of the injury.' See also McCampbell v. Benevolent & Protective Order of Elks, 71 Ariz. 244, 248-249, 226 P.2d 417, where it was recognized that the conditions of both terms must be satisfied before an award may be sustained.

The Company argues that the assault did not arise 'in the course of' Claimant's employment because Claimant had been discharged prior to the assault and because the assault took place outside the Company's premises.

It is not disputed that Claimant had formally been discharged from his employment prior to the time he sustained his injuries. The record shows, however, that Claimant remained in the area in order to receive his pay check. He was told, first, to wait in his automobile, and a few minutes later, to pick up his check at the Company's office. The circumstances immediately leading to the assault took ...


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