Pеtitioner, 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” deаth did not occur by an accident arising out of and in the course of decedent’s employment. Its refusal to award petitioner death bene *403 fits 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 scoрe 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,
Petitioner in support of her claim calls our attention to the broad scope of decеdent’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 loсated 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 рick-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 rаnch to obtain and pay laborers, procure ranch supplies and repair parts for equipment, contact -contract labor, and for hunting сattle 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 of 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 wаs 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 cоmplete 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 tо the point where the accident occurred was related to his employment or whether he was on a private venture.
There are but meagеr details in the record as to the movements of Martin on this fatal Saturday. This lack of evidence is understandable for no one accompanied him оn the trip and his lips are closed in death. It was established however, without contradiction: (1) that on Friday, the *404 day before his death, he had gone to Florenсe to get the cash for the payroll;
(2) that between three and four p.m. on Saturday, A. W. Hawkins, a stepbrother of petitioner and a constable and deputy sheriff in Mesa, met and had a short conversation with Martin at the .intersection of highways south of Tempe, where the latter in parting stated: “Well, Albert, I got to bе going. I have a few more boys to pay off”;
(3) that Martin had stopped at a tavern on McClintock Drive located about midway between the S. P. overpass and Baseline Road. (The commission makes no claim however that Martin had abandoned his employment by reason of intoxication — nor is there -any showing of intoxication) ;
(4) that one Aida McCardle, then residing in Tempe, made a verified written statement that “shortly before the fatal accident, I overheard J. C. (Jim) Martin make the statement that he was going home because he had things to do and was still working and had to pay some of the men that worked for him” ;
(5) that Martin wаs driving the car of his employer and heading in the direction of the ranch and the route he was following was one which he might have reasonably taken on а trip from Mesa or Tempe; and
(6) that the accident occurred at 5 :45 p. m. and he died within the hour, without regaining consciousness, at the Southside Hospital in Mesa.
The petitioner contends that under these circumstances a presumption or at least an inference arises to the effect that Martin wаs within his employment at the time of the accident. For support she relies upon the annotation in
The legal proof required in these cases in order to sustain the burden may be either direct, circumstantiаl or presumptive. We believe that the petitioner in the
*405
instant case has adduced enough uncontradicted facts to raise a rebuttable prеsumption that the deceased was within his employment at the time of the accident, which under all the circumstances of this case is not unreasonablе or unfair to the commission. Where there is no evidence produced to rebut this presumption, it is controlling and sufficient upon which to predicate аn award. Cf. Federal Mut. Liability Ins. Co. v. Industrial Accident Commission,
Since Martin’s employment created the necessity for travel, he comes within the rule stated in Harris v. Industrial Cоmmission,
The commission having no evidence be■fore it rebutting this presumption, it was bound thereby and must give it effect.. Wiggins v. Pratt-Gilbert Hardware Co.,
Award set aside.