Charles v. Industrial Commission

407 P.2d 391, 2 Ariz. App. 202, 1965 Ariz. App. LEXIS 447
CourtCourt of Appeals of Arizona
DecidedNovember 10, 1965
Docket1 CA-IC 11
StatusPublished
Cited by8 cases

This text of 407 P.2d 391 (Charles 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
Charles v. Industrial Commission, 407 P.2d 391, 2 Ariz. App. 202, 1965 Ariz. App. LEXIS 447 (Ark. Ct. App. 1965).

Opinion

CAMERON, Judge.

This is a writ of certiorari to review the lawfulness of an award of the Industrial Commission of Arizona, denying compensation for an injury received by the claimant in an automobile accident.

The issue before this Court is whether the claimant was injured in an accident arising out of and in the course of his employment.

Claimant was employed by an independent insurance agency, Ken Clarke & Associates, hereinafter called the employer, as an office manager and sales representative. The employer had developed a specialized type of insurance program tailored to fit the needs of credit bureaus and collection agencies. The employer was requested to explain this type of policy coverage at a convention of credit and collection association members which was being held in Tucson. The employer designated the claimant and a fellow employee, Mr. Peterson, to attend the convention. The two men drove to Tucson in Mr. Peterson’s automobile on Friday, 10 April, 1964. They met various members of the conventioning group, dined and socialized with them, and discussed business including the possibility of claimant’s attending the credit group’s national convention to explain his insurance program. An officer of the association suggested this possibility.

The association convened on Saturday morning, and claimant presented his insurance talk to the group. Claimant was with the convention and various individual members of the association the entire morning. Mr. Peterson left on another trip, and claimant was without transportation. The claimant spent the early afternoon socializing with members of the association. He then left the convention motel with a friend, Reed, whom he had telephoned. They talked, had several drinks at bars, and drove slowly past the Payne Livestock Auction, in order that claimant could get a general idea of the livestock auction’s physical plant preparatory to negotiating with them concerning insurance coverage.

Claimant and Reed proceeded to Reed’s riding stable where claimant helped hiu friend, Reed, prepare for an evening hayride. Claimant had arranged for Reed’s liability insurance through a Tucson agency some years ago, and claimant testified at the hearing that after looking at Reed’s operation, that his company could not write the insurance for Reed.

Claimant was without transportation and secured a ride back to the convention motel at approximately 9:00 p. m.. with another friend, Speck Wilson. The claimf ant testified that he had, at one time, tried to write Mr. Wilson’s truck fleet insurance in Tucson, and that^ he did not consider him a good risk at the present time. Claimant intended to have dinner later that night with an officer of the association.

On the way back to the convention motel, at a point near Grant Street and Miracle Mile or Oracle Road in Tucson, the parties were involved in an accident and claimant suffered an intertrochanteric fracture of his right hip.

The issue is whether the claimant’s injury arose out of and in the course of his employment. The Commission entered a finding and award for non-compensable claim on 14 July, 1964. After re-hearing and petition, the award denying compensation was affirmed 14 January, 1965. Claimant petitioned this Court for a writ of certiorari to review the lawfulness of the Industrial Commission’s award. Two responses to the petition for the writ of certiorari were filed; one by the Industrial Commission of Arizona, generally denying the allegations in the petition, and one response filed by the claimant’s former *204 employer, Ken Clarke & Associates, which, in part, stated as follows:

“Further responding to the petition, this respondent respectfully shows the court that after considering all the .evidence, the respondents’ agents expressly advised the referee the petitioner was in the course of employment and that the accident arose naturally and reasonably from the activities in which he was engaged on behalf of the employer.”

The Commission having found that claimant’s injury did not arise out of or in the course of his employment, we must examine the record and see whether or not this finding is reasonably supported by the evidence, Snyder v. Industrial Commission, 96 Ariz. 81, 392 P.2d 34 (1964).

The claimant introduced the testimony of four witnesses in addition to his own testimony. Three of these witnesses had extensive backgrounds in the insurance field, and the fourth, an officer of the credit association, had invited Ken Clarke & Associates to send a representative to the association meeting. One of the three insurance men was the Executive Secretary of the Arizona Association of Independent Insurance Agents, who testified that he had been in the business 56 consecutive years. He was questioned as to separate phases of claimant’s activities while in Tucson, and asked for his opinion as to whether they were not within the scope of claimant’s employment. In each instance, he answered that they were within the scope of his employment.

The vice president of Ken Clarke & Associates testified that claimant was specifically instructed to contact as many friends as-'he could while in Tucson for the benefit of Ken Clarke & Associates. He testified:

“Anything that he did in the course of ''meeting people, even old friends, would further this object of the company.”

Mr. Clarke, the claimant’s employer at the time of the accident, testified that even in turning down insurance risks, that it would be beneficial to the company. He testified as follows:

“Q. Is it also, Mr. Clarke, good business, as Mr. Charles related, to diplomatically refuse a risk that he doesn’t feel is good for the company ?
“A. Absolutely.
“Q. And to leave the door open so that, in the event it does become a good risk, you will still have a way in?
“A. Why certainly. We don’t want to make enemies of people. Things change. Maybe next year that would be a good risk and we would want it.”

Claimant was no longer in the employ of Ken Clarke & Associates at the time the hearing was held. Claimant testified that he left their firm to accept a better offer on 1 August, 1964. No business relationship existed between the claimant and Mr. Clarke and the vice president of Mr. Clarke’s firm when they testified in his behalf at the time of the hearing. This is not the fact situation suggested by the Commission in its lengthy quotation of the Court’s rationale of Ocean Accident & Guarantee Corp. v. Industrial Commission, 32 Ariz. 265, 257 P. 641 (1927), and cited in U. S. Fidelity And Guaranty Co. v. Industrial Commission, 43 Ariz. 305, 30 P.2d 846 (1934), in which the court stated:

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Bluebook (online)
407 P.2d 391, 2 Ariz. App. 202, 1965 Ariz. App. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-v-industrial-commission-arizctapp-1965.