Campbell v. Industrial Commission

799 P.2d 1357, 165 Ariz. 583, 60 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 170
CourtCourt of Appeals of Arizona
DecidedMay 8, 1990
DocketNo. 1 CA-IC 89-008
StatusPublished
Cited by3 cases

This text of 799 P.2d 1357 (Campbell 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
Campbell v. Industrial Commission, 799 P.2d 1357, 165 Ariz. 583, 60 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 170 (Ark. Ct. App. 1990).

Opinion

OPINION

KLEINSCHMIDT, Judge.

This is a review of an Industrial Commission award for a compensable claim against an employer. The problem arises out of the fact that the employee was injured when he was on a trip that had both a personal and a business purpose. The award was based upon the finding of the administrative law judge that the employee was within the course of his employment at the time he was injured. We find that he was not, and we set aside the award.

J.D. Campbell owns and resides on a small ranch located about thirty miles from downtown Phoenix. He also has a water company, a realty company, and a mercantile company in the same area. He obtained workers’ compensation insurance for the mercantile company only. Campbell employed a foreman who mainly worked on the ranch and for the water company, although he occasionally worked for Campbell’s other enterprises.

The claimant, Robert L. Ritter, began working for Campbell as a ranch hand in 1986. His normal routine involved morning and evening feeding chores along with vari[585]*585ous other tasks assigned by the foreman. As part of his employment, the claimant resided on the ranch and was subject to-24-hour call.

While he was working for Campbell, the claimant was under the guidance of a vocational rehabilitation counselor for the Arizona Department of Economic Security. The counselor was training the claimant in job-seeking skills and helping him to find another job. On Monday, October 20,1986, the counselor contacted the claimant regarding a position available with the State of Arizona. The counselor instructed the claimant to obtain a job application and a handicapped preference form from an office in northwest Phoenix and then come to the counselor’s office for assistance in completing the forms. The forms were supposed to be submitted by the following Friday. That evening or the following morning, the claimant requested and received permission from the foreman for time off during the afternoon of Tuesday, October 21st, to complete this personal errand.

After the claimant completed the morning feeding chores on October 21st, the foreman told him to paint some sign posts for Campbell’s realty company. The claimant was doing this when he ran out of paint. He informed the foreman, and the two of them made a list of materials they needed from the hardware store. The claimant itemized the painting materials, including a quart of paint, paint thinner, and paint brushes. The foreman added miscellaneous items, general stock and hardware necessary for other projects, which he had previously listed as supplies to acquire. The foreman asked the claimant to pick up the items at a particular hardware store if the claimant’s personal business left him time to do so.

About two o’clock in the afternoon of October 21st, the claimant left the ranch on his motorcycle. Shortly thereafter, he was involved in a collision and was severely injured.

The claimant timely filed workers’ compensation claims against Campbell and his various enterprises. All of the claims were denied, and following protests, consolidated hearings ensued. Our review of the testimony focuses on the evidence relevant to the dual-purpose trip.

The foreman testified that the claimant had requested time off to pick up an application and to see his counselor. The claimant was unsure how long the trip would take but indicated that he hoped to be back for evening chores. After granting this request and then learning that the claimant had run out of paint, the foreman compiled the list of hardware items. The foreman denied that any of the items on the list were urgently needed. He acknowledged that he had been told to prepare the signs “soon,” but he testified that this meant within a week or so and that the job was actually finished in December. The foreman also testified that the items were not important enough for a special trip, and he doubted that the claimant would have been sent for them if he were not traveling to town on personal business. He denied instructing the claimant to pick up the items; rather, he testified that he merely requested the claimant to stop if possible. The claimant never indicated to his foreman that he intended to stop at the hardware store first. Finally, the foreman acknowledged that he, the foreman, picked up the items at the hardware store on October 23rd. He explained that a trip to town was necessary to pick up feed, and he stopped at the hospital to see the claimant and at the hardware store during the course of this trip.

The claimant testified that he had not firmly committed to seeing the counselor on October 21st. He explained that he wanted to get back to the ranch for evening feeding chores if possible and, if necessary, his sister could help him fill out the employment application. He acknowledged that the foreman had only requested that he pick up the items if possible, but he testified that he had intended to go to the hardware store first. He explained that he considered it part of his job and would have sacrificed seeing his counselor to accomplish it. Finally, the claimant acknowledged that he would have taken the person[586]*586al trip even if there had not been a business purpose for it. On the other hand, if his personal purpose had been cancelled, he said that it was only possible that he would have made the trip to the hardware store; the ultimate decision would have been the foreman’s.

The administrative law judge concluded that the claim was compensable because the injury occurred during a trip which served both a business and a personal purpose. She referred to Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929) for the general rule that a trip is a business trip if a business motive would have required the trip to be made even if the personal motive for the trip had failed. She then relied on a refinement to that rule — the so-called “someone sometime” test discussed in 1 Larson’s Workmen’s Compensation Law, section 18.13, at 4-267-68 (1985). That test holds that even if the trip would not have been made if the personal motive for it failed, the trip remains a business trip if someone at sometime would have had to undertake a special trip to accomplish the business purpose. The administrative law judge found the claimant to be a truthful witness, believed that he did intend to go to the hardware store, and concluded that someone sometime was going to have to make the trip to the hardware store. She noted that, in fact, the foreman did make the trip only two days after the accident, although its purpose then was combined with other reasons to make the trip. This decision was affirmed on review, and this special action followed.

Campbell first asserts that Arizona has rejected the “someone sometime” test relied on by the administrative law judge. He also argues that even if the “someone sometime” test is the law of Arizona, the administrative law judge interpreted it too broadly. We hold that Larson’s “someone sometime” test is the law of Arizona, but that the administrative law judge misapplied it to the facts of this case.

Campbell’s argument that Arizona has rejected the “someone sometime” rule is based upon his interpretation of our supreme court’s ruling in McKay v. Industrial Comm’n, 103 Ariz. 191, 438 P.2d 757 (1968). In that case, the claimant, who owned a dress shop, was injured while on her way home from work.

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Bluebook (online)
799 P.2d 1357, 165 Ariz. 583, 60 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-industrial-commission-arizctapp-1990.