Award set aside.
Holmes & Morrison, of Tucson, for petitioner.
Robert E. Yount, of Phoenix, for respondent Commission. H. S. McCluskey and Robert W. Pickrell, of Phoenix, of counsel.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[73 Ariz. 402] Petitioner, Harriet Alice Busby Martin, by certiorari, has brought before us for review an award of the Industrial Commission of Arizona, respondent insurance carrier, denying her death benefits under the Workmen's Compensation Act. A.C.A.1939, § 56-901 et seq. Her husband, James Calloway Martin, was fatally injured on May 6, 1950 in an automobile collision at the junction of Baseline Road and McClintock Drive in Maricopa county, Arizona.
The sole question presented is whether the commission erred in its qualified finding that "the evidence indicates" death did not occur by an accident arising out of and in the course of decedent's employment. Its refusal to award petitioner death benefits [73 Ariz. 403] is squarely bottomed on its claimed inability to find any positive evidence that the deceased was engaged in his employment at the time of the fatal accident. It contends that the widow has nothing but mere surmise or conjecture to support her claim and that it is largely based on a presumption as to the scope of employment of the deceased.
The law is well settled that the burden of proving that the accident which resulted in injury or death arose out of and in the course of the person's employment rests upon the petitioner. Tooley v. Weisbarth, 66 Ariz. 230, 186 P.2d 638; Korff v. Charles Luke Const. Corporation, 69 Ariz. 312, 213 P.2d 471. The commission as trier of the facts is not required to disprove it. Lopez v. Kennecott Copper Corp., 71 Ariz. 212, 225 P.2d 702.
Petitioner in support of her claim calls our attention to the broad scope of decedent's employment, hence we will set forth the overall picture. The evidence conclusively establishes that Martin was 69 years of age at the time of his death, had been employed for 35 years by the Clemans Cattle Company and was a trusted employee and foreman of its ranch and feed lots located west of the town of Chandler. He was given a free hand, i. e., his employer delegated to him wide discretion in the management of the ranch, furnished him with a pick-up truck to be used in carrying out his duties, and permitted him to use the truck freely for his personal affairs. His duties required that he make frequent trips away from the ranch to obtain and pay laborers, procure ranch supplies and repair parts for equipment, contact contract labor, and for hunting cattle pasture or strayed animals. He was furnished a home on the ranch and had no regular working hours but was available at all times of the day or night to take care of whatever was needed. The number of employees required to operate the ranch varied, depending upon the amount of work, from two or three to
twelve. In compensating these men Martin would make up work time sheets, drive to Florence where the company office was located and obtain a check for the total amount. He would then cash the check and return to the ranch to pay the men. In short he had complete charge of the ranch and accounted to his employer only for the result.
The fact of the fatal accident is not disputed nor is there any dispute as to the petitioner being his widow and sole dependent. The crucial question is whether on the day in question the travel which led decedent to the point where the accident occurred ...