MARTIN et al.
INDUSTRIAL COMMISSION et al.
Rehearing Denied June 9, 1953.
[75 Ariz. 405] Mangum & Flick, Flagstaff, for petitioners.
Robert E. Yount, Phoenix, for respondent Industrial Commission. Perry M. Ling and Robert W. Pickrell, Phoenix, of counsel.
Callie Hoovler Martin, a widow, and Andrew Roy Martin, her infant child, as petitioners, have brought before us for review an award of the Industrial Commission of Arizona--hereinafter termed the commission--denying dependents' claim for 'death benefits' arising out of the death of the husband, Andrew Martin. The latter at the time was an employee of Swift & Company, who carried workmen's compensation coverage with the State Industrial Fund.
After the original award denying compensation was entered, a rehearing was granted where the facts were more fully developed, whereupon the commission reaffirmed its previous award.
There is no dispute as to petitioners' dependency, decedent's employment or the fact that he met his death as a result of carbon monoxide poisoning. The crucial question is whether death resulted from an accident arising out of and in the course of his employment.
The petitioners justly complain that finding No. 2, reading:
'That the evidence indicates that said deceased applicant, Andrew Martin, did not sustain a personal injury by accident arising out of and in the course of his employment' (emphasis supplied),
is not a positive finding of fact as is required by law. In the case of Martin v. Industrial Commission, 73 Ariz. 401, 242 [75 Ariz. 406] P.2d 286, we termed such a finding a 'qualified finding', and were it not apparent from the entire record that it was here intended as a positive finding we would set aside the award and send it back to the commission to make proper findings. To do so in the instant case would, we believe, not avail petitioners anything but only cause added expense and delay. We do, however, condemn such a finding and suggest that its use by the commission be promptly discontinued.
The facts, stated as they must be in a light most favorable to sustaining the award, are as follows: The decedent was employed by Swift & Company, Ice Cream Division, as a route manager. Working in and out of Flagstaff he covered the territory east to Winslow, west to Ash Fork, and south to Oak Creek Canyon, soliciting orders, collecting accounts, and making deliveries. He was largely left to his own discretion in performing his work so that he sometimes started as early as 6 a. m. and remained on the job until 6 p. m.
The employer's facilities in Flagstaff consisted of a 2 1/2 ton refrigerated truck which would keep ice cream safely from 12 to 14 hours without its electrical refrigeration units being operated, a warehouse in which there were offices, garage space for trucks, and large walk-in cold storage boxes where the company's products were stored.
The warehouse is located in Flagstaff on Aspen Street, east of but in the same block as the Monte Vista Hotel. The building occupies 50 feet of south frontage on the street with a 10 foot door and driveway in the center. On either side of this door are offices running back into the building approximately 25 feet on one side and 30 feet on the other. Beyond the offices the building is used for trucks or taken up with storage rooms and walk-in coolers.
Here briefly, in chronological order, are the pertinent events preceding and after the accidental death of Andy Martin. The decedent left his home on Friday evening, January 4, 1952, because of a domestic quarrel. He did not return home again but stayed away that night and the following two nights as he had on other occasions when the circumstances were similar At such times it had been his practice to sleep in the truck at the garage. On Sunday, January 6, he spent the evening hours at several of the night clubs in Flagstaff, being last seen at a cafe at 2 a. m. on Monday morning. At 5:50 a. m. that morning John Hickey, an employee of the Arizona Distributing Company which, as a sub-lessee of Swift & Company, used the same warehouse, arrived to pick up his truck. He observed the decedent, as he had on other occasions, in a reclining position on the seat of the truck. The witness stated, 'He didn't move. He acted like he was sound asleep.' Ernest Buckman, also employed by the Arizona Distributing Company, as its branch manager, [75 Ariz. 407] with an office in the same building, arrived shortly before 9 a. m. and was in his office all morning except for a brief period when he went out for coffee. Mr. Buckman was found at noon by Alan Kinvig, slumped unconscious on the office floor from carbon monoxide gas poisoning, but he was revived at the hospital. Mr. Kinvig later discovered the decedent lying dead in the truck seat when he was sent to turn the truck motor off, by Dr. Sechrist who was called to treat Mr. Buckman. Attempts at resuscitation of the decedent failed. Evidence of important facts and details from many witnesses fill out the chronological framework above. In order to highlight and make patent the various inferences that the commission might draw we shall treat the evidence topically rather than by a summary of the testimony of each witness.
The witness Hickey testified that the first thing he noticed upon arriving at 5:50
a. m. was the decedent's shoes. They were on the cement floor by the lefthand cab door which was pulled closed but not latched shut. When Mr. Kinvig discovered the body he sought aid and Lee Hutchison and Dr. Sechrist assisted in removing the dead body of decedent from the truck. The doctor and Hutchinson testified that his shoes were then off. Mr. Kinvig did not remember whether they were off or not when they removed the body but did see them shortly thereafter in approximately the same place testified to by Hickey.
Position of the Body
Witness Hickey described the position of decedent when he saw him at 5:50 a. m. as 'laying down with his head to the right side.' When discovered at noon his position was described by the witness Hutchison as reclining, his head being toward the righthand door of the truck, his legs entangled in pedals and gear shift lever. Mr. Kinvig testified he was slumped over on the seat, his legs under the steering column. Dr. Sechrist stated that the legs were in the levers; that he was twisted in the truck; and that around decedent's mouth there was dried saliva and blood which had apparently been there for some time. Mr. Paxton, a deputy sheriff, made an inspection of the premises after the body had been removed and described among his findings dried sputum in successive layers running down the edge of the seat though all of it was not yet completely dry.
Many lay witnesses, including the mortician who observed and handled the body, testified about the presence or absence of rigor mortis, and most, if not all, of them stated the body was completely limp. However, Dr. Sechrist's testimony is clear and direct on the subject and the commission was free to disregard the testimony of less-qualified or experienced persons. [75 Ariz. 408] The doctor testified that when discovered rigor mortis had already set in, and as a result thereof they had considerable difficulty in extracting the legs from the gear levers and in removing the body from the cab. He further testified that the face and neck were discolored, and had wrinkles where he had been lying which did not come out. The cab was described as being 'stifling hot' and the doctor stated this would retard rigor mortis.
In view of the rigor mortis, discoloration and wrinkles, it was the doctor's written opinion on the day of the inquest that 'he had been dead from two hours up to six or eight hours'. At the formal hearings held thereafter, at no time did he fix the time of death at 'less than two hours' prior to the discovery of the body.
Truck Refrigeration Unit
Mr. Hickey testified that the electrical cord which supplied power to the truck's refrigeration unit was plugged into the power source when he was in the building shortly before 6 a. m. The temperatures in the large 'walk-in box' as well as the truck refrigeration unit were controlled by thermostat and only operated as needed. He stated positively that neither of these units were then running, nor was the truck motor. Mr. Buckman, on opening up for business, walked past the truck to get a snow shovel. At that time the truck unit was connected and running, as well as the motor on the reefer box, and he stated they were very noisy so that the quiet Chevrolet truck motor would not have been heard though it were running. Mr. McCauley, the justice of the peace and ex officio coroner, whose office was adjacent to the premises, borrowed the snow shovel about 9:30 a. m. or 9:40. When shown pictures of the premises with the truck purportedly parked as it had been on January 7, 1952, with the cord plugged in, he confirmed their accuracy. Mr. Paxton, the deputy sheriff, stated that the unit was still connected when he inspected the premises at approximately 2 p. m.
Opportunity for Observation
Two persons testified that they saw decedent on the streets of Flagstaff on the morning of January 7, 1952. The first in point of time was Mr. Herring, who was standing by the window inside the Rose Tree Buffet between 8:20 and 9:00 a. m. when he stated he saw the decedent walk
by. The second was a Mrs. Eleanor P. Durkee, who testified decedent passed her on the street between 9:30 and 10:00 a. m. when she was on her way to have some coffee. No other person testified that they saw the decedent or did any business with him that morning. As to others more closely associated with him and who would have had much greater opportunity to have seen him had he been on duty that morning, the evidence is as follows: John Conrard's place of business was next door to the Swift & Company warehouse. He went to work at 8 a. m. that morning and did not see decedent until the body was [75 Ariz. 409] discovered. Ernest J. Hogan, an employee of Conrard, did not see decedent on that day until discovered after noon. Mr. Kinvig worked at the offices of the Coconino Sun which are across the street from the warehouse. He did not see the decedent until he opened the truck door to shut off the motor. Judge McCauley, who borrowed the snow shovel, did not see decedent before he was discovered dead.
Mr. Buckman testified the large entrance door through which Martin would necessarily have entered was locked when he arrived. He did not see decedent that morning though he was in the building and in his office the entire morning except for the short time he went out for coffee. The office had a glass partition so that anyone moving in the driveway would have been seen by him.
Upon these facts and the inferences raised therefrom the commission made its finding that decedent 'did not sustain a personal injury by accident arising out of and in the course of his employment.'
This court has in prior opinions set forth the meaning of these terms, the most recent being the case of Serrano v. Industrial Commission, 75 Ariz. 326, 256 P.2d 709. Therefore, it is sufficient to say that the phrase 'arising out of' refers to the origin or cause of the injury and the phrase 'in the course of' refers to the time, place, and circumstances of the accident.
The cause of death was established by the coroner's jury as monoxide poisoning, and the commission so found. The monoxide gas was generated by the idling of the truck motor which warrants the inference that the decedent had put it in operation. The risk of monoxide poisoning was inherent in the employment, and if this accident occurred 'in the course of' it would patently have 'arisen out of' the employment. Stated another way, the narrow question is whether the accident arose 'in the course of' the employment, for the risks of monoxide poisoning from the operation of a truck which an employee uses in discharging his duties is inherent in and a natural consequence of that employment. 71 C.J., Workmen's Compensation Acts, § 398; Goodyear Aircraft Corporation v. Gilbert, 65 Ariz. 379, 181 P.2d 624.
It is the privilege and duty of the commission, as the trier of fact--and not of this court--to resolve all conflicts and draw warranted inferences. What, then, is the inference in support of the award regarding the time, place, and circumstances of the accident that under the evidence the commission was free to base its findings and award upon? One possible inference is that as decedent had for his own purposes spent the latter part of the night in the truck it was a mere coincidence that (1) the place the accident occurred was the place of employment, (2) that the time of the accident might have been, but was not necessarily, within the [75 Ariz. 410] hours of employment, and (3) that the truck in which the accidental death occurred was used in the employment.
With the exception of two matters in evidence irreconcilable with the above inference which we shall discuss hereinafter, there was no evidence supporting an inference that decedent ever entered upon his duties or into his employment on the day of his death that is not also consistent with an inference that he did not so enter upon or into his employment. Where two inferences may be thus drawn the commission is at liberty to choose either, and its conclusion will not be disturbed unless it is wholly unreasonable. F. W. Woolworth Co. v. Industrial Accident Commission, 17 Cal.2d 634, 111 P.2d 313.
A wholly unreasonable inference is that decedent intended to drive off in the truck just prior to the time he was overcome by monoxide gas, since the front door of the building was closed, the electric cord from the truck refrigeration unit was connected with the wall outlet, and he was in his stocking feet. During January in Flagstaff a man who is about his duties in an unheated garage does not go about with his shoes off. Such would be contrary 'to the usual propensity' of men. Furthermore, had decedent once been up and about town that morning is it not most improbable that he would have again removed his shoes with the snowy weather then prevalent? Was not the commission justified in inferring, under these circumstances, that the decedent came to the garage as a sanctuary in the early morning hours to sleep, that he removed his shoes and, becoming cold, at some unknown time thereafter started the motor to warm the cab and thereafter lapsed into unconsciousness--from inhaling this lethal gas--with death resulting? Petitioners, however, deny the right of the commission to draw any such inferences due to the apparent limpness of the body. 'Medical authorities agree that it is not possible to fix the time of death from the onset of rigor mortis. * * *' Commonwealth v. Woong Knee New, 354 Pa. 188, 47 A.2d 450, 455. In that excellent opinion are collated the medical authorities bearing upon this question. It appears therefrom that generally rigidity appears from two to six hours after death though there are many well-authenticated cases showing instantaneous onset after sudden death, caused by violent muscular exertion, thus furnishing decisive evidence of the manner and circumstances of death. See, also, 77 C.J.S., Rigor Mortis, p. 418, with footnote. Peterson, Haines, and Webster, in Legal Medicine and Toxicology, Vol. 1, 2d Ed., p. 187, say:
'The difference in time required for the appearance of rigor mortis in the various muscles probably depends upon some difference in their chemical condition. * * * Rigor may be very long ...