Award set aside.
Locklear & Wolfinger, Prescott, for petitioner.
Robert W. Pickrell, Phoenix, for respondent Industrial Commission of Arizona, H. S. McCluskey and Robert E. Yount, Phoenix, of counsel.
Don T. Udall, Superior Court Judge. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur. Phelps, J., being unable to take part in the case, the Honorable Don T. Udall, Judge of the Superior Court of Navajo County, participated in his stead in the determination of this appeal.
Don T. Udall, Superior
[74 Ariz. 379] Petitioner Genevieve Gore Delk has, by certiorari, brought before us for review an award of The Industrial Commission of Arizona denying her compensation. The facts upon which the award is based are not in dispute and may be stated as follows:
Petitioner is the widow of Thed Delk, herein called decedent. The parties were married in the year 1931 and lived together continuously as husband and wife until his death on August 20, 1951. They have no children. Their home at the time of his death was on a ranch about two and a half miles north of the Skull Valley Store in Skull Valley, Yavapai County, Arizona.
The decedent became a livestock inspector for the Livestock Sanitary Board of the State of Arizona in the year 1938, and had worked for the state continuously from that date until his death. His district extended from the mountains north and east of Skull Valley to the desert on the south and into Mohave County on the west. The town of Bagdad, Arizona was included therein. On the date of his fatal accident, the decedent was called on official business to Bagdad where he made routine inspections and attended to other business as specifically directed by officers of the Sanitary Board. Decedent was accompanied by his wife and upon their return trip home, late in the afternoon of that day, they left the new main highway and detoured to an establishment known as "Pike's Place" located on a parallel mile section of the old road formerly in use between Bagdad and Skull Valley. The old and new roads divide at a Y about one-half mile west of Pike's Place; thereafter, the old road rejoins the new road about one-half mile further east of this tavern. The old road was passable, at the time of the accident, and could be traveled safely at a slow speed. There is no cut-off road leading directly north from Pike's Place to the new road, and it is evident that after the decedent and his wife had stopped for a rest period of some two or three hours' duration at Pike's Place they had to continue east on the old road or else return west to the Y in order to get back onto the main highway. The Delks left Pike's Place sometime after dark and had only traveled a short distance east on the old road, with which decedent was evidently not too familiar, when their car suddenly went off the embankment as it came onto a section of the road damaged by storm that afternoon. The car rolled over, killing Inspector Delk and rendering petitioner unconscious. The Delks and the wrecked car were not discovered until the following day. At an inquest it was determined by the coroner of the Bagdad Precinct that the decedent had died as a result of the automobile accident.
[74 Ariz. 380] The evidence further discloses that a livestock inspector may set his own traveling hours; that salaries of said inspectors vary over the state dependent upon the amount of work they have to do; that mileage, as such, is not paid but the amount of travel involved and the number of cattle inspected in his district is reflected in the salary paid the inspector.
The Commission contends that the decedent made a departure from his employment by taking the old road and stopping at "Pike's Place"; that he departed from the main, safe highway for his own personal pleasure, thereby meeting his death on a dangerous route on which he had placed himself.
It is the petitioner's position that decedent was traveling ...