Malinski v. Industrial Commission

Court of Appeals of Arizona

Malinski v. Industrial Commission

438 P.2d 38, 6 Ariz. App. 387, 1967 Ariz. App. LEXIS 588

CourtCourt of Appeals of Arizona

DecidedOctober 30, 1967

DocketNo. 1 CA-IC 108

StatusPublished

Cited by1 cases

This text of 438 P.2d 38 (Malinski 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

Malinski v. Industrial Commission, 438 P.2d 38, 6 Ariz. App. 387, 1967 Ariz. App. LEXIS 588 (Ark. Ct. App. 1967).

Pincite

Opinion

STEVENS, Judge.

We are here concerned with the status of an employee performing a small service for his employer while the employee is en route home after work and the application of the going and coming rule. We have this day rendered our opinion in McKay v. Industrial Commission, 6 Ariz.App. 381, 433 P.2d 32, in which certain aspects of these problems were decided. In the matter now under consideration, we do not repeat our discussion set forth in the McKay decision.

Lawrence E. Malinski had been an employee of Black and Ryan Distributors for some period of time prior to his death. The business location of Black and Ryan was 2645 E. Washington which is easterly -from 24th Street. The evidence established that he was a shopman and also an outside man. He and his wife lived in Sunnyslope on Carol Street, one block north of Hatcher Road. Carol Street came to a dead end east of the Malinski residence. The most accessible route from the Malinski residence was to go a short distance to the west to 8th Street or another block to the west to 7th Street.

There was testimony that Malinski usually worked on items such as refrigerators and gas appliances and that he did not usually work on refrigeration units unless the job was a simple job.

There was testimony that there were four men working in the Black and Ryan shop and that each of these men had the use of a Black and Ryan service truck. Malinski had the use of the oldest of the service vehicles. The servicemen customarily took the service vehicles home with them, returning in them on the following morning or retaining them over the week-end.

The vehicle which Malinski had been using was in need of repair and was taken out of service a few days prior to the incident in question. There was evidence that Black and Ryan was considering repairing this vehicle and that the decision to repair or replace the vehicle had not been reached. On prior occasions when the vehicle had been disabled, Malinski had driven his jeep pickup truck to work and while at work had used the vehicle on company business being reimbursed for mileage. Malinski also owned a motorcycle, which he had owned for approximately 6 months prior to the incident in question, during which time he had driven the cycle approximately 3400 miles. Most of the riding was on week-ends including trips to the lakes and trips over the busy Black Canyon Highway.

Mrs. Malinski testified that Malinski told her that many times he was late in arriving home for the reason that he had stopped [389]*389by to see a customer to ascertain whether a minor repair could be made, or to ascertain the materials which might be needed for the following day in order to save time when the repair was undertaken and avoid useless backtracking for parts. This was an employee practice of the servicemen of Black and Ryan, there being testimony that other servicemen also rendered this extra bit of service on behalf of their employer.

On the day in question, Tuesday, 10 September 1963, Malinski rode his motorcycle to work. During the course of the afternoon he accompanied another serviceman in another vehicle on company business and returned to the Black and Ryan place of business in the neighborhood of 5 o’clock in the afternoon, this hour being the normal quitting time. He was seen leaving the place of business of his employer on his motorcycle shortly after 5 o’clock. Mrs. Malinski testified that he did not carry his tools with him on the motorcycle. According to the police report of the accident, which report was introduced in evidence, Malinski was involved in a motorcycle-motor vehicle accident at the corner of 15th Street and Granada at 5:33 that evening. He died the same day and there is no evidence that following the accident he made any statement to anyone with reference to his activities between the time he left his employer’s place of business and the time of the accident.

It was not until the 4th day of May 1964 that Mrs. Malinski first contacted the Industrial Commission with reference to the possibility of seeking her widow’s compensation. The service manager of the employer rendered a report to the Industrial Commission stating in part:

“This employee had finished his shift and was en route home on his own motor cycle and was involved in a fatal accident. He was not in line of duty or on official business for this company.”

It is unfortunate that the widow’s claim was delayed in that a reading of the transcript of the testimony indicates that the recollection of the witnesses as to certain important details had dimmed, especially in relation to specific dates and hours.

There was introduced in evidence a service invoice bearing date of 9 September 1963 in the name of B. Lambert with the address of 1401 E. Garfield. Under the item “Service Requested” the following insertion was made, “Replace thermostat”. The date that the last quoted item was inserted was not established. While there was some possible inconsistency in Mrs. Lambert’s recollection it appears quite clear that someone from Black and Ryan called at their home about dinner time on the 10th of September and inspected a refrigeration room air conditioner. She described the appearance of the individual. A fellow employee testified that of all the Black and Ryan servicemen, only Malinski fitted this description. When shown a color photo of Malinski, which was a part of his driver’s license, Mrs. Lambert testified that this looked like the man who had called at their home. Mrs. Lambert testified as to their usual dinner time which could have placed Malinski’s arrival at their home prior to 5 o’clock although this testimony was not positive and unequivocal. Mrs. Lambert testified that some days elapsed after the Black and Ryan employee called at their residence before the repair was made and that it was necessary to again call Black and Ryan to secure a completion of the repair order. The repair was made by a man who did not enter the employment of Black and Ryan until the 23rd of September. The testimony indicates that when a follow-up telephone call is made by a customer and the original service invoice can be found, it is not customary to write a new service invoice.

A map was introduced in evidence on which were marked the Malinski residence, the Lambert residence, the site of the fatal accident and the location of Black and Ryan. This map has been reproduced and is made a part hereof. In addition to the [391]*391marks which were placed on the exhibit at the hearing, and for ease of reference, the Court has circled the names of the following streets: Central Avenue, 7th Street, 16th Street, 24th Street, Camelback Road, Thomas Road, McDowell Road, Roosevelt, Van Burén and Washington. In order to accommodate the map, the area of approximately two miles between Camel-back and Thomas has been deleted. The Lambert residence is one block south of Roosevelt and approximately two blocks west of 16th Street whereas the accident occurred three blocks north of McDowell and one block west on 16th Street. Mrs. Malinski testified that she believed that her husband frequently used 16th while going to and from work. Efforts are made to conjecture as to why Mr. Malinski did not go directly from the Lambert residence either east to 16th Street or west to 7th Street in view of the time of day, the traffic conditions, the presence of stop signs and other potential traffic problems.

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