[81 Ariz. 346] Robert F. Miller, Tucson, for petitioner.
Donald J. Morgan, Phoenix, for respondent, The Industrial Commission of Arizona; John R. Franks, Robert K. Park and John F. Mills, Phoenix, of counsel.
UDALL, Chief Justice.
By certiorari, petitioner Marie Tegeder Muchmore, a widow, has brought before us for review an award of the Industrial Commission of Arizona-hereinafter termed the commission-denying her, as sole dependent, 'death benefits' provided for under the Workmen's Compensation Law, A.R.S. § 23-901 et seq. Her husband, Miles Burchard Muchmore, aged fifty-nine years, was fatally injured on Sunday evening, January 16, 1955, in an automobile collision occurring on U. S. Highway 84 near Tucson. We shall hereafter refer to this road as the Picacho Highway.
Decedent Muchmore at the time of his death was employed by Lyndon Miner and Phil A. Baker, a partnership, d. b. a. the Tucson Inn, which is a motor motel located at 127 West Drachman. The partnership carried workmen's compensation coverage with the State Industrial Fund.
There is no dispute as to petitioner's dependency, or that decedent was employed [81 Ariz. 347] for more than two years prior to his death under a contract as general manager of the Inn at a salary of $500 per month, nor of the fact that decedent, who never fully regained consciousness, died within the hour of the fatal accident. The crucial question presented is whether death resulted from an accident arising out of and in the course of his employment.
After investigation of the matter the commission made its award on March 11, 1955; protest and a petition for rehearing were timely filed. Upon rehearing the commission reaffirmed its previous award upon the basis of its finding that death of decedent was not caused by reason of an accident arising out of and in the course of his employment.
The points raised by petitioner's two assignments of error are (1) that the commission erred in the finding made, supra, and in failing to award death benefits, because the award made '* * * is contrary to law, not supported by the evidence, and is not a reasonable finding based thereon', and (2) that the commission erred in failing to find that decedent was killed in an accident arising out of and in the course of his employment, for the reason that the evidence wholly supports such a conclusion.
Before attempting an analysis of the voluminous evidence adduced in a four-day hearing, which consists of 571 pages of reporter's transcript, we deem it advisable to restate some of the principles governing such a review (the are so well established in this jurisdiction as to require no citation of authority): (1) 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 petitioner; (2) the commission as trier of facts is not required to disprove it; (3) the legal proof required may be either direct, circumstantial or facts giving rise to a rebuttable presumption; and (4) evidence adduced will be considered in a light most favorable for sustaining the award.
It is petitioner's contention that her claim was improperly denied because the accident which cost decedent his life occurred while he was performing a necessary service for his employers, to wit: a motor trip to inspect roadside signs advertising the Tucson Inn along the highway.
To properly evaluate the action taken by the commission it is necessary to examine the background of decedent's employment
and his activities in connection therewith. The Tucson Inn, which had opened for business some two and one-half years prior to this fatal accident, consisted of one of the largest motor motels in the city-101 rental units-with an appurtenant coffee shop or restaurant and a swimming pool. Decedent Muchmore (with an exception hereinafter noted) had been the general [81 Ariz. 348] manager throughout the period, working no specified hours but available 'around the clock', as he and his wife had their living quarters in one of the apartments. The Muchmores owned an automobile (the death car) which was primarily for their personal use, but which at times was also used by decedent in caring for his employer's business, and, when so used, the Inn paid the expense thereof.
As a means of attracting business the Inn had caused to be erected and maintained advertising signs on various roads leading into the city. This medium of publicity had been followed from the beginning of its operations. On the Picacho Highway such advertising was handled by lease contract with two firms which owned the sign boards. Arizona Neon Advertising, Inc., took care of the outside billboards (size 4 ft.X8 ft.), using 'Scotch Lite', a material that reflects the headlights of a car at night. According to its representative there were twelve such signs between Tucson and Picacho. Jack Ray Turner had a contract covering the erection and maintenance of one large electrically lighted sign (42 ft. x 12 ft.). This was located about 2,500 feet north of the point of impact, or four and one-tenth miles from the Inn. Turner was paid $80 per month for this service. When the manager learned of defects in any of the signs, they were promptly called to the attention of the contractor for correction.
The record is replete with evidence tending to show that decedent at all times had taken a great interest in, and sensed the importance of, highway sign advertising in attracting the travelling public to patronize the Inn. Furthermore, there is evidence that decedent Muchmore was in the habit of frequently driving in the evening on the main highways to personally view such signs.
There is also testimony that the Flamingo Motel (a competitor) had put up a sign somewhat overshadowing the Inn's electrically lighted sign, and the management was not pleased with this situation. Turner stated, 'they wanted to talk to me about changing it'. He asserted a conference had been arranged for Monday morning (January 17th). Mr. Baker, one of the coowners, who had been living in the Inn for the previous eight months, was taking an increasingly large part in making decisions affecting operations at the Inn. He testified that this sign situation ...