*1
including outbuild-
Estate, that there 67 Ariz. 190 P.2d court when
is limitation no such as commonly is known selects what
probate the death homestead selected after decedent, particularly where the circum
property When the is indivisible. is that the court left with
stances are such alternative, may abusing its
no without family regardless home
discretion select the value, where division cannot reason
of its
ably made. apparent
It in the instant is case homestead could have been selected
that a premises and exclud
and carved out houses and income
ing therefrom rental premises, as dis These rental
property. main home are not a neces from the
tinct thereto, adjunct and can be divided
sary injury depriving without
therefrom homestead its character. house
the main remanded reversed and
The cause setting the order aside to vacate
instructions homestead, and for tract entire not inconsistent with proceedings
further opinion.
this LAPRADE, UDALL and
PHELPS,
WINDES, concur. JJ.,
UDALL, Justice. Martin, widow, Hoovler and An-
Callie Roy Martin, child, peti- her drew infant tioners, brought before for review us an award of the Industrial Commission of termed the commis- Arizona —hereinafter dependents’ denying “death claim for sion-— arising benefits” out of the death of the husband, Andrew Martin. latter employee of the time was an Swift & Com- pany, compensation who carried workmen’s coverage with State Industrial Fund. award original denying After the com- entered, pensation a rehearing fully the facts more granted where developed, whereupon the commission re- *3 previous award. affirmed its dispute petitioners’ as to There is no de- pendency, employment decedent’s or the death fact that he met his as a result of poisoning. carbon monoxide The crucial death question is whether resulted from an arising out of and accident in the course employment. his justly petitioners complain The 2, reading: finding No. “That the evidence indicates applicant, said Mar- deceased Andrew tin, personal injury did a not sustain Flick, petition- Mangum Flagstaff, & for by arising out accident of and in the ers. employment” (emphasis course his supplied), Phoenix, Yount, respond-
Robert E. Perry positive finding of ent Industrial not a fact as is re- Ling Commission. M. Phoenix, Piclcrell, quired In the Martin v. and Robert of coun- law. case of W. Commission, Industrial 73 Ariz. 242 sel. (cid:127) 406 Hotel. The finding the Monte Vista as such block we termed
P.2d frontage south appar- occupies feet of building 50 were it “qualified finding”, and and drive- 10 foot door here with a that it on the street record from the entire ent side of this On either finding we would in the center. positive way intended as a running back into to are offices and send back door set aside award on feet one side proper findings. approximately 25 building to make commission would, Beyond the of- be- feet on the other. case we in the instant do so To for trucks anything building but is used petitioners lieve,' fices not avail storage and walk-in delay. up rooms expense and We taken only cause added finding and however, do, such a coolers. condemn commission be its use suggest that order, chronological are briefly, in Here discontinued.
promptly preceding and after pertinent events Andy The Martin. facts, be the accidental death stated as must The Friday evening, home on sustaining to the decedent left his favorable light most in a 4, 1952, domestic January The decedent was because of a award, follows: are as Company, again, Ice home quarrel. & Cream He did not return employed by Swift stayed аway night and the follow- manager. Working but Division, route as a occa- nights he covered the terri he had other Flagstaff ing two as on out Winslow, Fork, to were sim- west Ash sions the circumstances tory east to Canyon, soliciting practice been his Creek ilar. times it had At such Oak and south accounts, making collecting sleep garage. de truck at the On orders, largely spent evening Sunday, left to his own January He liveries. Flag- work performing night so clubs in hours at several of discretion early staff, as a. m. cafe 2 a. m. on started being last seen at he sometimes job p. until 6 m. morn- Monday 5:50 a. m. that morning. At and remained Hickey, employee the Ari- ing Flagstaff employer’s facilities John Company which,' Distributing zona as a refrigerated ton aof consisted 2% Company, keep safely ice cream from sub-lessee of & usеd Swift would warehouse, without its electrical re- pick up hours arrived same 12 to *4 operated, being a ware- decedent, units he truck. He observed the as frigeration offices, garage occasions, there were po- which reclining in had other in a on house trucks, large walk-in cold and for the truck. space on the seat of The wit- sition company’s prod- the stated, where storage boxes “He didn’t move. He acted ness n asleep.” stored. were he was Ernest ucts like sound Buck- man, employed by also the Arizona Dis- Flagstaff is located in warehouse tributing Company, its branch Street, manager, as Aspen east of but the same place approximately the same testified to building, arrived in same with an office the by Hickey. of- m. and was his shortly before 9 a. period except for brief fice all Body Position of the Buck- he for Mr.
when went out coffee. position Hickey described the Witness Kinvig, was found noon Alan man at him at 5:50 a. m. of decedent when saw floor slumped on the office unconscious head the “laying as down with his poisoning, but gas monoxide carbon po- at side.” discovered noon his When Kinvig hospital. the Mr. revived at he was Hut- by the witness sition was described lying the decedent dead discovered later reclining, being chison his head toward to turn truck seat when he was sent truck, righthand legs the door the off, by motor Dr. Sechrist who the truck pedals entangled gear shift lever. and At- to treat Mr. Buckman. was called slumped Kinvig Mr. testified he was over tempts decedent at resuscitation seat, legs steering under important facts Evidence of and failed. legs Dr. column. Sechrist statеd many fill out witnesses details from levers; were in the he was twisted in above. order chronological framework truck; decedent’s and around patent make the various highlight and mouth there dried saliva blood might that the commission draw inferences apparently been there some topically treat the evidence rather we shall Paxton, sheriff, deputy Mr. time. made summary of the testimony than inspection premises after each witness. body had been removed and described Shoes sputum findings dried in. among his suc- Hickey testified The witness running down layers edge cessive upon arriving he noticed thing 5:50 first though yet seat all of it com- They shoes. the decedent’s were a. m. was pletely dry. by the cab floor lefthand
on the cement Rigor Mortis pulled but not which was closed door witnesses, Many lay including the mor- Kinvig Mr. discov- latched shut. When who observed and handled the body sought body, aid and Lee Hut- tician ered presence assisted in re- and Dr. Sechrist about chison testified absence of mortis, most, body all, of decedent from if not moving the dead of them body completely The doctor tes- limp. truck. Hutchinson stated However, were then his shoes off. Mr. Dr. Sechrist’s tified that clear they subject whether not remember direct on and the Kinvig did com- disregard removed free to off or not the mission was testi- shortly less-qualifiéd experienced mony them thereafter per- but did see or. *5 quiet that when dis- doctor testified Chevrolet truck sons. The motor would not in, already have been rigor though mortis had set heard running. were covered they McCauley, had Mr. justice peace a result thereof consid- and as of the coroner, еx difficulty extracting legs from officio adja- erable whose office was body premises, cent to gear removing levers borrowed the snow the shovel about the cab. He further testified that 9:30 a. m. or 9:40. When discolored, pictures had shown premises face and neck were with the parked truck lying purportedly wrinkles where he been as it had been on January did in, not come out. The cab was described plugged cord as the doctor confirmed being “stifling Paxton, hot” and their accuracy. Mr. deputy sheriff, stated would retard mortis. rigor this stated the unit was still inspected connected when prem- mortis, In view of the discolora- ises at approximately p.2 m. wrinkles, tion and the doctor’s writ- was opinion ten day inquest on the of the Opportunity for Observation “he had up been dead from two hours persons they Two testified that de- saw eight six or hear- hours”. At the formal cedent on the Flagstaff streets of ings thereafter, held fix at no time did he January 7, morning of 1952. The first in the time of death at “less than two hours” point of time Herring, was Mr. who was prior to the discovery body. standing by the window inside the Rose
Truck Refrigeration Unit
Tree Buffet between 8:20 and
a. m.
9:00
Hickey
Mr.
testified that
the electrical when he stated he saw the decedent walk
supplied
cord which
power
by.
to the truck’s
The second was a Mrs. Eleanor P.
refrigeration
Durkee,
unit
plugged
passed
into the
who testified decedent
her
power source when he
inwas
the build- on the street between 9:30 and 10:00 a. m.
ing shortly
temper-
before 6 a. m. The
way
she was on her
to have some
atures in the large “walk-in
person
box” as well coffee.
No other
testified that
as the truck refrigeration
unit were con-
saw
decedent or did
business with
trolled
only operated
thermostat and
morning.
as him that
As to others more
positively
closely
needed. He stated
that neither
associated with him and who would
running,
these units
then
nor was
greater opportunity
have had much
to have
Buckman,
open-
Mr.
motor.
seen
truck
him had he
duty
been on
that morn-
business,
past
up
walked
ing
ing,
truck
the evidence
follows:
Con-
John
shovel.
get
place
a snow
At
time the
rard’s
of business was next door to>
unit was connected and running,
Company
as the
&
Swift
warehouse. He
box,
motor on the reefer
well as the
and went to work at
a. m. that morning
very
they were
so
noisy
he stated
that the
did not see decedent until
The cause of death was established
employee
Hogan,
discovered.
Ernest J.
(cid:127)by
poison
jury
the coroner’s
as monoxide
on that
Conrаrd,
see decedent
did not
ing, and the
commission so found.
Kin-
Mr.
after noon.
day until discovered
gas
generated
idling
monoxide
Coconino
the offices
vig worked at
of the truck motor which
the in
warrants
*6
the
street
the
are
Sun
across
put
ference that
in
the decedent had
decedent
the
not see
warehouse. He did
operation.
poison
risk
The
of monoxide
shut
to
off
opened
truck door
until he
the
ing was
employment,
inherent in the
and if
McCauley,
bor-
who
Judge
the motor.
accident
“in
this
occurred
course of” it
the
shovel,
dece-
see
rowed the
did
snow
patently
would
have “arisen out of” the
dead.
dent before he was discovered
employment.
way,
Stated another
the nar
entrance
large
the
testified
Buckman
Mr.
question
row
is whether the accident arose
would nеces-
through which
door
“in the course
employment,
of” the
for the
when he
was locked
sarily have entered
risks of
op
monoxide poisoning from the
that
decedent
not see
He did
arrived.
eration
aof
employee
truck which an
uses
building and
in
he was
morning though
in discharging
duties is
his
inherent
and
except for
morning
entire
his office the
consequence
natural
employment.
of that
out for coffee.
went
time he
short
C.J.,
71
Compensation Acts,
Workmen’s
§
that
partition so
glass
office had
398; Goodyear
Corporation
Aircraft
v.
driveway would
anyone
moving in
Gilbert,
379,
65 Ariz.
A many though there are well-authenticated intended to drive off in the that decedent just prior the he was over showing truck time cases instantaneous onset after gas, by come monoxide since the front death, sudden caused violent muscular closed, building the elec door of the exertion, furnishing thus decisive evidence refrigeration unit tric cord from the of the manner and of circumstances death. outlet, the wall and he connected with See, also, C.J.S., Mortis, Rigor 77 p. 418, January stocking During was in feet. Peterson, Haines, footnote. Flagstaff man who is about his duties Webster, Legal Medicine and Toxicol- garage go in an unheated not about does 1, ogy; Ed., Vol. p. 2d 187, say: would be con with his shoes off. Such “The propensity” difference in trary required “to the usual of men. time appearance Furthermore, up decedent once been mortis in the morning is it not probably and about-town most various depends muscles up- improbable again that he would re on some difference in their chemical * * * snowy with the weather moved his shoes condition. Rigor may very be prevalent? delayed Was not long the commission may then or slight so as to ” * * * inferring, -under justified escape these circum- notice.
411
morning
entering into cumstances that the decedent that
many factors
There are so
employment.
had not entered into his
of death
problem fixing the time
can
set rule
rigor of
that no
The direct
witnesses
testimony
is en-
physician
be laid down. A trained
Herring,
Durkee
saw
there-
“personal opinion”
give
titled to
accident,
decedent
of the
layman
would
on but the
aof
up-
cannot be reconciled with the inference
probative
obviоusly
value.
have but little
and award rest. The
finding
on which the
petitioners assign
as error
commission’s
that the
It must be remembered
undisputed
disregard the
evi-
election “to
arose
burden of
the accident
proving that
persons, which is
dence of disinterested
out
em
of and in the
course
decedent’s
contrary to law”.
ployment
petitioners, and
rests
governing the
trier
The rule
disprove
required
commission
disregard
of fact to
uncontradicted testi-
the claim. Martin
Commis
v. Industrial
mony
many
has been invoked in
Arizona
sion, supra.
petitioners
to meet
seek
In
is stated
nearly all
the rule
cases.
cases
responsibility by
presump
this
invoking
prohibition
exceptions
qualified
are
or
is,
“unexplained death”,
tion of
Morales,
given. See Banco de Sonora v.
employee is found dead
“When
328;
248,
23 Ariz.
Norie-
203 P.
Croziеr v.
indicating that
under circumstances
409,
1104;
ga,
Ariz.
233 P.
Otero v.
27
place within the time
death took
Soto,
87,
947;
34
All
Ariz.
P.
Phen v.
267
employment, in the
space
limits
567,
Lines,
American Bus
56 Ariz.
110 P.
of what caused
evidence
absence
Dist.,
227;
Veg.
2d
Ison v. Western
indulge
will
most courts
death
104,
649; Equitable
Ariz.
P.2d
Life
that the death
inference
presumption Johnson,
428,
Assur.
v. De
36 Ariz.
Soc..
employment.” Lar
out of
arose
Estate,
817;
Gary’s
P.
re
69 Ariz.
Law,
Compensation
Workmen’s
son’s
815;
211 P.2d
Lee v. Industrial Com-
10.32, p.
mission,
101.
1085;
Sec.
71 Ariz.
224 P.2d
Rat-
ley
Commission,
v. Industrial
74 Ariz.
Commission,
See,
Industrial
su-
Martin v.
ment of Lockwood’s statement of Justice Soto, in the instant case the rule in *8 supra, be invoked Otero following cannot v. tion case (1) Noriega, earlier of Crozier there is not v. su the reason pra, quoted which both of from the Cali any of what caused evidence of "absence Judson, of Davis v. suggest that it fornia case Cal. petitioners (only the death” 121, 147, has been followed —in (2) P. ab accidental), the commis- was not juris- the rule this form —as from all cir- breviated to infer entitled sion quoted part diction. may The of the Davis arbitrarily reject not uncontra- opinion, with full Lockwood’s state- dicted nothing evidence when intrinsic Justice rule, ment of the as follows: is evidence itself or extrinsic “ circumstances of sus- the case casts it general ‘While is the rule that picion Soto, supra thereon.” Otero v. testimony uncontradicted of a wit- 87, 949], Ariz. (Emphasis 267 P. [34 particular may ness to a fact not be supplied.) disregarded, accepted by but should be For a detailed discussion of the rationale proof fact, the court as this rule rule, see, Evidence, Wigmore on 3d exceptions. has positive its The most Ed., sec. v. Delmont State testimony may of witness a contra- Jerke Bank, 54 S.D. 233 N.W. 72 A.L.R. improbabilities dicted inherent as to 7. accuracy its contained in the witness’ transaction, own statement of the or case, In the instant as we have may there be circumstances in evidence pointed out, many there are extrinsic cir matter, in connection with the which suspicion cumstances which upon cast satisfy the court falsity. its testimony of the who witnesses testified manner of may the witness in testifying they saw decedent on the Flag streets of impress the court with doubt as to staff the morning question. In this situa accuracy of his statement and in- tion there is no rule law compelling disregard positive fluence it to testi- accept commission to it. The rule law mony partiсular fact, and, as to a as involved is that which announces that the province within the is of the trial trier of fact will determine the matter and court determine what credit and court, be sustained this when reasonable
weight given shall be to the testimony minds considering prop the evidence could witness, any this court cannot con- erly come to different conclusions. The trol its finding conclusion denying decision in analysis the final is based upon credence, ap- unless it hold, logic. therefore, reason and up We pears that there are no matters or cir- record entire the commission did impair which cumstances at all its ac- arbitrarily not act and thus did not err in curacy.’ disregarding testimony, upon said case words, facts of this reasonable men could
“In other circumstanc- if differ. jus- appear in the case which would es
tify discrediting reasonable man evidence, The second matter of irrecon- witness, jury the statement cilable with the inference it, may though to believe even refuse based, is that award is Mr. Hickey testified directly challenged, positively not but truck motor running *9 my every in- three of morning. In other fact that associates have :50 recognized up- was either drawn different inferences from that motor stance noisy my re- motors on the on which I seek to base conclusion running or the that the operating compelling so should constitute a reason for frigeration units my findings been heard. concurrence affirming would not truck However, and award of commission. have said about testi weWhat are facts this case such that I desire Herring Durkee and mony the witnesses prоtest against findings to enter a and question. After controlling on this is also upon award of the commission the evi- say cannot examining record we by dence as shown the record. complete and is so clear the evidence First, testimony the trier of fact ambiguity that free witness arbitrary man Hickey, whimsical or truck driver for has acted Buckman who was rather, but, that the circum garage plaintiff’s we find ner where truck was that reason parked evidence are such stances and a. at around 6:00 right m. walked different con might reach men well by able truck and saw Martin in the cab asleep. clusions. apparently He stated under oath positive he was the truck motor was not oth- unnecessary to treat the deem it We running at that time. He also said that assignments of error. er refrigerator neithеr of the motors were Compensation Our Workmen’s running at that time. Therefore there was provide general for a health does not Law prevent nothing to him from hearing the every coverage, hence acci accident running motor if it had been. employee is not com dental death an Hickey was a disinterested witness. His pensable. unequivocal. To reach the Award affirmed. commission, conclusion arrived at Hickey. to disbelieve WINDES, JJ., LA PRADE concur.
Buckman testified that he went into the PHELPS, Justice. garage round 9:00 m. and a. walked I dissent. At the truck. that time he said both refrigerator motors were running and were rule court that recognize the of this I noisy. fact-finding When asked if he evidence submitted where observed whether engine the truck running, character that reason- body is of such a he re- “No, plied didn’t, : I I didn’t may draw different inferences hear it men run- able ning.” previously finding upon statement therefrom, the of that made be- investigator commission, fore binding this court and such evidence álé expected appear variance him he before the testified somewhat at
Buckman board, ques- by whom asked the selective she was with the He was service above. following day, employed,the but the weath- tion: er bad she decided to call him was so over “Q. you notice motors Did phone give him the information. The com- running A. at that.time? *10 positively She identified the date as the pressor cream truck. the the ice on Buckman said he was out of his 7th. of- compressor say on I wouldn’t fice about 15 minutes. He further stated running. big was box bought cigarettes package either he “Q. you the motor of Did noticе at restaurant or walked on to Proch- running? Not at all. A. bought now’s News Stand and one—he running, “Q. would If it had been didn’t remember which. He didn’t remem- the motor of the com- noise from seeing ber Mrs. Durkee at the restaurant A, out? pressor probably drown it morning, although that he he said had fre- would, that com- it because believe I quently seen her He there. didn’t remem- noisy. pressor is rather ber whether the restaurant was crowded or “Q. Much noisier than an auto- just how morning. it was that He didn’t ? A. would be Yes.” motor mobile remember whether the wind blowing was hard or not. testimony relative to whether the truck His running unobserving or was at 9:00 One so could motor have failed to negative probative has no observe Martin value enter the garage m. is a. that morn- running ing The truck motor was at he before went to the whatever. restaurant or he easily nоon. If it run- was not could have been 12 o’clock mistaken around about the noon, running length and was at a. m. time he ning at 6:00 was absent from his of- pe- during someone fice for coffee. His was started was most only unsatisfactory was the man who everything Martin about riod and he at- tempted any it for the reason started to relate. In event could Martin gone could have to the persons garage garage other no soon after there were speaking to except Mrs. Durkee and period Buckman during that who entered while Buckman was at the restaurant the restaurant he went to for a testified n cup coffee cigarettes. at Prochnow’s purchasing 15 or 20 minutes before 10:00 of. Hickey Durkee saw him at testified that Mrs. the res- he observed a. m. Mar- tin’s shoes beside the 'cab, door morning having cup of cof- taurant “ * * * just met Martin on the She street had fee. as if a man would Just “Hi” to him. She up said first truck, had start to climb you if stop open would Martin and the door thought she tell had and started- step off, hearing before shoes at At the all. in, your shoes take you if would 23, 1952, they April Dr. commission on position just exactly the that’s did Martin Sechrist not mention whether were in.” off, had he on or or whether saw shoes remem- said he didn’t Kinvig The witness for- shoes at He had stated on a all. anything Martin’s shoes. ber about investigator mer occasion “They could have question, answer to commission that when he first saw that correct?” he an- Is been or off. they got his shoes were He said off. He he swered, correct.” stated “That’s him out of the truck he didn’t have beside the Martin’s shoes didn’t notice probably shoes time on. This is the first assisting in re- truck whilе door of the observed shoes were off. cab he did body from the but moving his garage to the Dr. mortis from the entrance Sechrist look back testified away attempt- 30 to feet set in at time leaving (some as was ing truck), and saw the shoes. When to remove him from the truck while from the respect all including to the of the other Kin- they were with witnesses asked where said, Hutchison, vi'g and cab he the undertaker and his door the truck assistant, testified very, that the “Well, tell from where I I couldn’t very limp and one moving witness said in standing. was en- I *11 establishment, him undertaking to the he way. appeared to They trance put had to his hands under his belt to the cab.” the side of there at keep falling them from off side of the if he Mar- then asked removed Kinvig was body cot on which the was laid. The from his feet and he testified tin’s shoes doctor further body testified that was know whether did not. he didn’t that testimony warm and that Martin’s feet and that discoloration of The gears. The legs entangled in the were face about which he testified could have Sechrist that Dr. and a testified witness place in taken two hours after his death. hold of shoul- Hutchison had Martin’s Mr. It be observed placed will that the doctor he, Kinvig, cleared his feet that and ders death Martin’s from two to six prior hours up something. It is hung which were 12 o’clock noon. to While the undertaker Kinvig that removed probable entirely probably experience had had more who in disentangling aid in shoes to Martin’s how observing soon mortis sets in he was gears. He said feet from testified, death than witness after who witness the time. The- excited at greatly death placed the time of of Martin at one getting Martin who аssisted Hutchison prior p. and hours 12:15 to one one-half to time the truck observed some out of body saw when received the for transfer shoes of? but m. never that'Martin’s And es- truck. posi- when removed from parlors. stated undertaking He to the testimony pecially view of the further set had not then tively rigor mortis that working that “And after of the doctor in. minutes, realized we (Martin) him or 20 that he Deputy Paxton testified Sheriff been dead hopeless.” If Martin had was it the interior of the of made an examination taken the time he was six hours at two to been removed cab after the had cab, should have real- the doctor on the seat sputum deceased found and impossible. was that resuscitation ized then question of to a answer the truck. himto other he saw that indicated that Herring what The witness testified the refеree in a cer- had been Buffet between pass Martin’s head Tree than that Martin the Rose indicated, of the replied morning that “It position, he and 9:00 a. m. on the tain 8:20 sputum, part 7th, probably indicating that Martin due to the freshness very recently.” He time Buckman garage had done at the that it been out of sputum portions of at a few minutes before further stated that went to work and edges witness Martinez who dried on had 9:00. “ time, * up * * at the stated cleaning the buffet testi- From the doctor’s him at the time positively Herring told on, mony, the as- go which we to just passed that he had the buffet Martin sumption due to the heat was that day at around by that later gone cab, dry rath- sputum to tended death, p. hearing after of Martin’s 2:00 m. rapidly, appeared to be over- er ” * * * mentioned that he had Herring again layers. laying in sucсessive go morning. the buffet seen n Isubmit testimony Dr. Sechrist’s testimony Thus we have the -of two wit- upon rigor Martin died based to nesses saw Martin on streets of who weight much entitled to as is not mortis 7th Flagstaff be- the undertaker who fixed as that of spoke tween 8:20 and 10:00 a. m. prior half one hours at one to death him, one of corroborated whom fixed, at p. while the doctor 12:15 m. testimony witness Martinez. We have the hours, margin within six from two to Hickey that at 6 the motor in :00 a. ifi. have occurred. Such a death could me, positively running. the truck statement, appears was not We shows such Kinvig as to the time of have the definiteness it was a lack of *12 probative running value nil. around 12 render its o’clock noon. We have as to death if the that true we consider fact no one the Especially garage is the above was аt be- of witnesses who testified that tween :00 a. m. the time number and Martin was the testimony limp the of the body except found dead near the was and noon hour the Mar- body tin, still warm Hickey himself that the was and doctor Buckman. If this is true excitement, turned having not remember done so. inescapable that is the fact stated, period, say As above unable during that he was to that motor on truck not upon his return he did do so. probably did he after a. m. garage around 10:00 to the With to due deference the members of It the street. meeting Mrs. Durkee on I great- the commission for whom have the concluded snowing and doubtless respect, they appears to est me that and because trip Flagstaff of outide make a totally testimony positive disregarded the and be- home at conditions of domestic spоke of the witnesses who saw and up un- had been the fact that he cause of Martin on Flagstaff streets he de- morning 2:00 a. m. that til after They disregarded of his death. The testi- sleep a little while. cided to testimony Hickey who said 'he was usually worked mony that Martin showed positive engine the truck was not p. m. If Martin m. to 6:00 6:00 a. from testimony running at 6:00 m. and the a. and Herring on the street was seen Kinvig that he turned motor off during the Durkee his death arose Mrs. They disregarded around o’clock noon. employment. of his course testimony goodly number of wit- testimony we one have Against body all this nesses who testified of Martin witness Hick- very limp extrinsic circumstance. when removed from the be- ey that he Martin’s shoes testified saw undertaking truck and taken to the es- the cab. No the left-hand door of side They disregarded tablishment. the state- witness sаid he saw shoes at other ment of Dr. Sechrist mortis place Hickey where saw them. same could set in within two hours after death Naturally garage to the if Martin returned warm when removed again of Buckman during absence They from the cab of truck. disre- necessarily they his shoes would removed garded deputy of the sheriff Hickey a few feet of where be within the saliva seat of the truck after he Kinvig said that them. saw the mouth from of deceased was fresh at garage, leaving the entrance of the reached indicating 12 o’clock it had not been there long. they singled and noticed And out the building, back ex- looked one relating trinsic circumstance to Martin’s there tell where but couldn’t the shoes Hickey being seen shoes beside the left relation door to the of the a. of the cab 6:00 m. my door To Kinvig, in his excitement could truck. accept this circumstance proof mind to pur- for the Martin’s shoes removed having Martin’s death feet occurred disentangling legs be- pose of upon the discharge very he entered gears which would be fore employment very do and in much like logical thing his duties of natural *13 418 per- the have in might been properly an he had seen asserted who
the fellow during duties the hours pole his and when telephone elephant a climb of formance work, of evidence his the absence in order to in questioned, veracity was his of “Well, in his master’s said, engaged he not there his assertion prove presumption that business, there is a pole.” is the out of and the arose accident find- that the of view sincerely the I am the employment within course of the set aside. should be award ings and acts.’ compensation meaning of (dissenting). STANFORD, Chief Justice »‡ ?{C ift opinion original in written the Having to, the award just In case referred our majority having a of the not but this case com- denied Commission of the Industrial me, concur with court to members by this court. pensation it was aside but set main, opinion the same submit now, in the I Min. In New Consol. Medina v. Mexico facts, except already dissent, my 343, 345, Co., 493, where P.2d 51 N.M. 188 supplementing brief- except for stated, and compensation previously was denied ly the close. at Medina, believing that Ignacio widow an unex- has to do with This action by suicide deceased met death death, case and this court —in plained say: Supreme this Court had Commission, 73 v. Industrial Martin “ * * * violent death Whether a 286, 288, had to 242 P.2d Ariz. suicidal, pre- the law is accidental or the deceased was in which case a do with con- sumes is accidental until May 6, automobile killed preponderance trary is a shown Arizona, Maricopa County, collision ** * the evidence. what nothing to show there was where attempt explain “We do eyewit- death, no being there caused speculation, To so death. do leads to nesses—stated: Here, conjecture and surmise. as in petitioner that under “The contends cases, dependent de- most death is or presumption these circumstances witness, prived her best the em- the effect inference arises to at least an However, ployee himself. the essential employment was within necessary recovery facts need not sup- For accident. at the time of evidence, proved may direct but аnnotation port she relies by reasonable be established inferences stated A.L.R. 683 and the rule proven drawn from facts.” held generally ‘It is follows: therein as case, however, respond- instant employee shown that an that when have as ent does not defense that suicide where his a-place found dead death be, him to where was the cause of of Martin. required duties Durkee in Commission, Eleanor P. Lee v. Industrial our us, part case, own case before is as follows: 71 Ariz. 224 P.2d 1086: “Q. you to see Did occasion
Mr. Martin on disregard “The Commission cannot Janu- ary 7, Yes, sir, 1952? A. I did. undisputed evidence of a disinter- *14 ” * * * person. ested “Q. you Where did him? A. see (cid:127) alley-way, approximately It was Mr. Conrard testified that was John my office, right past why remem- and I the owner machine-shop Flag- of his own at bered it is some thаt Mr. Martin had staff, place just and his of business was going business in our office and he was place ques- east of the the where truck in the to have in office some business our stored; tion that he was to the ware- went stop following day, going I to and was question in when house the body found was up him and tell at a him to be there and that he Andy used inhalator on time, day certain but was a miserable after his was removed from said, just ‘Hi,’ going and kept I and questions, truck. asked He these among thought day. and I The others: would call next
time was between and o’clock. 9:30 10 “Q. any refrigeration Were units usually go I coffee you out for in, went working you do Yes, know? A. stationary the two time.” ones back there. I don’t know whether Herring testified in Charles Edwin they was; running, were both but one case as follows: I heard And that. the one on the truck you see “Q. Did have occasion to was operating.” morning Martin on the Andrew Jan- jury impanelled coroner’s in this uary'7, 1952? A. I did. brought matter in a verdict to the effect you “Q. Referee Will state to the “That Andrew Martin came to his death J. day Well, January, 1952, 7th you
just Flag- what saw? A. I staff, County, Arizona, by Coconino carbon standing looking west window poisoning; monoxide and that his death south, get watching a trying car to was accidental.” away Fe curb across on Santa
Street, Andy and came the street In this court’s case of Strauss v. Indus- pick tooth in his with a mouth Commission, 285, trial 73 Ariz. 240 P.2d by.” me as he to went nodded 550, 554, we said: “ * * * to the such giving witnesses In reference employee Acts of the quoted, quote personal as above we now comfort and convenience 420 quoted show, taking drink will a witness came
while at such as work electricity warming scenе and said that the caused water, cigarette, lighting continuity by plugging running the wall himself, interrupt into do not ” * * * refrigerator running. This indicates employment. first seeing after the of Martin Commission, Andreski Industrial v. witness, Hickey, time and the W. John case), 234, (a 135 1952 Wis. N.W.2d when others hours after- came on scene many visit gone where a sheriff had to wards, refrig- plugged someone on his own county taverns in his own elec- receiving erators and personal gone business had likewise tricity them. The inference restore county prior his unex- into another that no one do it but Martin. would court, setting plained death, aside Flagstaff, Arizona, has an elevation Commission, Industrial the award of the feet; 6,896 snowing it was Court, which confirmed and the Circuit 7th; January blowing wind was action, quoted from case its commission’s places get people took shelter in out 1928, Commission, Industrial of Tewes v. products so the weather. needed his Who fol- N.W. 194 Wis. early, why his truck take out over should lows : *15 mountain roads cover the distance “ * * * is established when it Winslow, east Ash from Arizona to the per- upon the employees entered have west, a to the distance of 109 miles? Fork found and are of their duties formance place slept in his truck If at the might place properly at' a where Company when of Swift & business duties, those discharge be home, petition- imminent at was trouble contrary, nothing appearing obtains, continuity penalized He it. presumption should not for er may He master’s interests.
protecting his home but abandoned temporarily case shows that evidence in this job. never abandoned his ware- person arrived at the the first minutes of mortis morning, Referring rigor abоut ten to the time when house in, opinion o’clock, “nothing majority was on” sets he said relies six passed Sechrist, physician testimony of Dr. a motor and way present body who the truck when the was taken the motor of Neither truck. testified, refrigerator that held from the truck. He “he had been plug-in nor L. eight hauled were on. dead from hours.” William the truck two to products' mortician, Compton, said however, mortis on, above- Later body not set in when the was removed IS minutes when it was taken from the truck, life, the track. hoping When doctor is called to restore and at the generally, oxygen being time death he unless life is same time given to Mar- sight, moment, takes but the mor- tin. but tician lives the dead. Who knows hesitation, say I the award of Without testimony definitely best? But the shows the industrial commission should be set Dr. worked on the Sechrist aside.