Casson v. Industrial Commission

539 P.2d 189, 24 Ariz. App. 385, 1975 Ariz. App. LEXIS 728
CourtCourt of Appeals of Arizona
DecidedAugust 28, 1975
DocketNo. 1 CA-IC 1173
StatusPublished
Cited by2 cases

This text of 539 P.2d 189 (Casson 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
Casson v. Industrial Commission, 539 P.2d 189, 24 Ariz. App. 385, 1975 Ariz. App. LEXIS 728 (Ark. Ct. App. 1975).

Opinion

OPINION

NELSON, Presiding Judge.

On July 5, 1973, a tragic fire and explosion took place in Kingman, Arizona, claiming several lives and leaving many with severe injuries. William L. Casson, the deceased husband of the petitioner herein, Patricia Ann Casson (Casson), was one of the victims. He was killed while attempting to extinguish the fire when a railroad tank car exploded.

The petitioner and cross-petitioner present two questions to us. First, does the evidence support the hearing officer’s finding that William Casson was killed as the result of an accident arising out of and occurring in the course of his employment with the Volunteer Fire Department of the City of Kingman as opposed to his regular employment with Citizens Utilities Company (Citizens), and secondly, if he was an employee of the City of Kingman at the time of the tragedy, was his average monthly wage properly found by the hearing officer?

We find that William Casson was killed as the result of an accident arising out of and occurring within the course of his employment with Citizens and therefore must set aside the award of The Industrial Commission of Arizona. Because of this resolution of the first issue before us, we do not decide the propriety of the average monthly wage which was set for Casson as a Captain in the Kingman Volunteer Fire Department.

Recognizing, as we must, that this Court reviews the factual record of The Industrial Commission of Arizona in a light most favorable to sustaining the award, Micucci v. The Industrial Commission of Arizona, 108 Ariz. 194, 494 P.2d 1324 (1972) ; resolves all conflicts in favor of upholding the award, Malinski v. The Industrial Commission of Arizona, 103 Ariz. 213, 439 P.2d 485 (1968); and will not disturb an award if it is reasonably supported by the evidence, In re Estate of [387]*387Bedwell, 104 Ariz. 443, 454 P.2d 985 (1969), we still must set aside this award. The evidence in this case is essentially not conflicting and there is only one possible inference to draw from that evidence, Gronowski v. The Industrial Commission of Arizona, 81 Ariz. 363, 306 P.2d 285 (1957): William L. Casson was killed as a result of an accident arising out of and taking place within the course and scope of his employment with Citizens Utilities Company.

While it appears that the hearing officer made a factual finding which should have inevitably led to the proper legal and factual conclusion regarding Casson’s employment, he confused the nature of the general business of a utility company with Casson’s particular job responsibilities therein, and thereby erred in his result.

Finding #2 is clearly correct:

“2. The evidence indicates that the deceased was a member of the Volunteer Fire Department not only with the permission of his superiors in the Citizens Utilities Company, hut at their request for the protection and preservation of company property, occasionally subject to fire damage, as well as for public relations aspects. The deceased had experience and expertise as a power linesman and his services often were utilized during fires to protect fireman [sic] from falling power lines, to disconnect transformers and electrical equipment, and other functions consistent with his experience.” (Emphasis supplied)

Finding #4 is where the hearing officer confused the general business of a utility company with the individual responsibilities assigned to Casson:

“4. Although the deceased in the instant case was not in a prohibited location nor performing a prohibited activity, it is considered that the benefits to the Citizens Utilities Company was [sic] only incidental to his activities as a volunteer fireman, and that the incident or explosion which resulted in his death did not arise from a source within or because of a risk inherent in his employment as a manager of Citizens Utilities Company. Accordingly, decedent’s death was not caused by an injury ‘arising out of’ the deceased’s employment with the Citizens Utilities Company. In the case of City of Phoenix v. Industrial Commission [104 Ariz. 120, 449 P.2d 291 (1969)], cited in Royall, supra [Royall v. The Industrial Commission of Arizona, 106 Ariz. 346, 476 P.2d 156 (1970)], the court stated:
“ ‘The causative danger must be peculiar to the work [. . . ] It must be incidental to the character of the business and not independent of the relation of master and servant. [ . . . ] It must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.’ [104 Ariz. at 123 (449 P.2d 291)].
“An exploding propane gas tank is not considered to be a risk inherent in deceased’s employment with Citizens Utilities Company or to have flowed from a source within or as a natural consequence of this employment.”

In general terms, that statement of the law and the general utility business as the lay public might view it is correct. The evidence in this case, however, is clear and without conflict, that Citizens Utilities Company required a certain number of their employees, as a condition of their employment, to become and remain members of the various volunteer fire departments in the communities they served, including William Casson in the City of Kingman, Arizona. Since Casson was required to be, or at least remain a fireman as part of his assigned duties with Citizens in Kingman, no one can seriously question the fact that the risk of an explosion was inherent in his regularly assigned duties.

William Casson worked for Citizens prior to World War II. After service in the armed forces, he was discharged in 1945 and returned to Citizens, where he [388]*388was employed in Kingman, Arizona until his untimely death. He had worked his way up from apprentice lineman to manager of Citizens in Mohave County, Arizona.

While there is no direct evidence as to exactly how Casson first became involved in the Kingman Volunteer Fire Department in 1947, or earlier, the methodology of selecting his successor to serve in the fire department as a representative of Citizens is enlightening. The president of Citizens, Ishier Jacobson, with headquarters in Stamford, Connecticut, testified at the hearing:

“Q. What is the present plan of your company, if any, to locate an employee to work with the Kingman Fire Department in a capacity simi- ' lar to Mr. Casson ?
“A. Well, first, so it is clear, the telephone company is our company also and we have two employees of the telephone division of Citizens Utilities Company who are on the fire department. And we are just talking about Kingman. We have the same in the electrical division down at Lake Havasu.

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Related

Word v. Motorola, Inc.
662 P.2d 1024 (Arizona Supreme Court, 1983)
Cardinale v. Industrial Commission
569 P.2d 284 (Court of Appeals of Arizona, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
539 P.2d 189, 24 Ariz. App. 385, 1975 Ariz. App. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casson-v-industrial-commission-arizctapp-1975.