Basinger v. Industrial Commission

486 P.2d 802, 15 Ariz. App. 122, 1971 Ariz. App. LEXIS 693
CourtCourt of Appeals of Arizona
DecidedJuly 19, 1971
DocketNo. 1 CA-IC 459
StatusPublished
Cited by1 cases

This text of 486 P.2d 802 (Basinger v. Industrial Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Basinger v. Industrial Commission, 486 P.2d 802, 15 Ariz. App. 122, 1971 Ariz. App. LEXIS 693 (Ark. Ct. App. 1971).

Opinion

JACOBSON, Presiding Judge.

On this appeal by certiorari from an award of The Industrial Commission, the widow and six minor children of William R. Basinger seek death benefits, alleging Mr. Basinger’s death arose out of and in the course of his employment. The Commission, after three hearings, entered its award finding that Mr. Basinger’s death did not arise out of the course of his employment and therefore was noncompensable.

[123]*123Initially, there appears to he some confusion in the Commission file as to the name of the true employer in this case. This matter had been carried in the Commission file as Basinger v. Adams Insulation, Inc. and State Compensation Fund, No. BE 57392. The evidence presented at all the hearings clearly established that Mr. Basinger was in fact employed by a partnership consisting of Wayne E. Adams and Robert J. Adams, doing business as “Adams Contracting”. This partnership was sometimes known as “Adams Insulation”.

The employer’s counsel brought this to the attention of the Commission and in an apparent attempt to correct the employer designation, the Commission issued a nunc pro tunc order as to the name of the employer. Unfortunately, the nunc pro tunc •order perpetuated the designation of the employer as a corporation. In view of the undisputed testimony that Mr. Basinger was employed by the partnership and not the corporation, this opinion shall have reference to the employer as a partnership doing business as “Adams Contracting” sometimes known as “Adams Insulation”.

The deceased, William R. Basinger, had been employed by Adams Contracting as a boiler insulator for approximately ten months prior to his death. During the period of time immediately preceding Mr. Basinger’s death, his employer had several jobs going: one in Morenci, Arizona, one at the Junior College in Cochise County near Douglas, and a third at the University of Arizona in Tucson, known as the Basic Science job. The deceased resided in Tombstone, Arizona.

For some time prior to his death, Mr. Basinger had been working at the Morenci job as a foreman and during the week was living in Clifton, Arizona, an adjoining community. He normally returned to his home in Tombstone on weekends. The deceased had also made arrangements with his employer, apparently on a private basis, that he would perform work on other jobs of his employer during the weekends on a straight time wage basis, as opposed to double time wages called for by the union contract. Pursuant to this weekend employment arrangement, the deceased had on several occasions performed work both at the Douglas job and the Tucson job, his usual practice being to drive from Morenci to his home in Tombstone on Friday night, spend the night at home, and then go to the jobsite the following Saturday morning.

Several days prior to August 25, 1967, the deceased was contacted by his employer and requested to report to the Basic Science job in Tucson on Saturday morning, August 26, 1967. The Basic Science job apparently was completed; however several minor defects in the job which showed up on a “punch list” needed correction. The deceased’s brother, who was also employed by Adams Contracting and who also lives in Tombstone, testified that Mr. Basinger telephoned him advising him to get all the tools together and be ready to leave Tombstone on Friday night, August 25, to go to Tucson to do the job required on Saturday morning. This procedure would be contrary to the deceased’s normal practice.

The evidence disclosed that Friday evening, August 25, 1967, after the work day had ended, the deceased went to the Coronado Inn in Clifton, Arizona, and had two beers with one of his men. He informed the bartender that he “was going home” and that he was “in a hurry to get home before his wife put the children to bed.” He then went across the street and purchased a six-pack of beer, got in his pickup and drove five or six miles down the highway to the “Three-Way” tavern and had another beer. After leaving the “Three-Way” tavern, he proceeded down the road for two or three miles where he was involved in a one-car accident which resulted in his death. The highway on which the accident occurred was the shortest direct route to both Tucson and Tombstone, his home.

The union agreement in existence at the time of the deceased’s death between the [124]*124Arizona Chapter of Association Insulation Contractors and the International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 73, and which governed travel situations at the time of the deceased’s death provided:

“When work is performed in the subsistence Zone 4 and 5 [Morenci is in Zone 5], all employees shall be paid an allowance for travel expense of Twelve Cents ($.12) per road mile to the job site from the City Hall of Phoenix or City Hall of Tucson at the beginning and the end of the job when travel is actually performed.
“If an employee is sent from one job to another in Zone 4 or 5 [Tucson is in Zone 1], he shall be paid travel expense of Twelve Cents ($.12) per mile from the first job site to the new job site * * * Mileage back to Phoenix or Tucson will be paid from the new job site at the completion of the job.’’

This language is to be compared with the union agreement in effect for the period 1961-1963 which provided:

“Workmen shall receive in addition to the above and foregoing subsistence, bus fare and travel time at contract rates to and from jobs in Zones IV and V.” (Emphasis added.)

The petitioners agree that generally the workmen’s compensation laws of Arizona do not apply and workmen are not to be compensated for injuries occurring during the journey to or from their place of employment. Malinski v. Industrial Commission, 103 Ariz. 213, 439 P.2d 485 (1968); Ebasco Services v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955) ; Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937).

Petitioners do contend, however, that Mr. Basinger’s death occurred under circumstances which would place him within either of two exceptions to this general “coming and going” rule, that is, (1) that his employment was such that the job required travel for his employer or (2), he was being compensated by his employer for travel and therefore was under the protection of the Workmen’s Compensation Act. See, Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709 (1953) ; Harris v. Industrial Commission, 72 Ariz. 197, 232 P.2d 846 (1951); Butler v. Industrial Commission, supra.

Petitioners’ first contention is, of necessity, basically dependent upon the facts underlying Mr. Basinger’s employment and his arrangement with his employer requiring his presence in Tucson on August 26, 1967. In such a case, if the Commission’s decision is supportable by reasonable evidence we are not at liberty to substitute our findings for those of the Commission. Graver Tank & Mfg. Co. v. Industrial Commission, 96 Ariz.

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Bluebook (online)
486 P.2d 802, 15 Ariz. App. 122, 1971 Ariz. App. LEXIS 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/basinger-v-industrial-commission-arizctapp-1971.