Opinion
No. 1 CA-IC 361.
March 24, 1971. Rehearing Denied April 23, 1971. Review Denied May 25, 1971.
Writ of certiorari was brought to review the lawfulness of an award of the Industrial Commission, Claim No. BE 36241-S, denying death benefits to widow of employee who was killed by a coemployee. The Court of Appeals, Haire, J., held that statute permitting persons sentenced to imprisonment to testify in a criminal proceeding did not render testimony which was given by coemployee who had been convicted of employee's murder and sentenced to life term in state prison and which showed that employee had abandoned his employment and engaged in personal activity at time of his death incompetent by implication or application of doctrine of expressio unius est exclusio alterius in proceeding brought before the Industrial Commission by widow to recover death benefits, in view of other statutes which dispelled any such implication.
This case was decided under the statutory law as it existed prior to January 1, 1969.
Affirmed.
Richmond, Ajamie, Fay Warner by Louis C. Webb, Phoenix, for petitioner.
William C. Wahl, Jr., Counsel, Phoenix, for respondent The Industrial Commission of Arizona.
Robert K. Park, Chief Counsel by Courtney L. Varner, Phoenix, for respondent Carrier State Compensation Fund.
This review by certiorari involves an Industrial Commission award which denied death benefits to petitioner, the surviving widow of a workman who was killed by a co-employee. Without question there was evidence before the Commission which would have justified the Commission's findings that the death of the decedent "did not arise out of nor in the course of his employment" and that "the episode of injury occurred at a time when the decedent had abandoned his employment and was engaged in personal activity with a third person." However, petitioner contends that this evidence supporting these findings was incompetent, and that when the record is stripped of all incompetent evidence, there is left a fact situation which gives rise to a presumption that the death was the result of an injury by accident arising out of and in the course of the decedent's employment.
The evidence which is claimed to be incompetent was the testimony of the decedent's co-worker, who testified that at the time of the decedent's death the two of them had departed from their duties as meter readers for the Salt River Project Agricultural Improvement and Power District and were target practicing at a gravel pit; that he first accidentally shot the decedent in the head and then purposely shot him two more times and took his wallet to make it look like robbery was involved. By the time the proceedings before the Commission were held, the co-worker had pleaded guilty to the murder of petitioner's decedent and to another murder and had been sentenced to two consecutive life terms in the Arizona State Prison.
Petitioner contends that although A.R.S. § 13-1653, subsec. C allows a convicted murderer serving a life term to give testimony in a criminal action, by implication or application of the doctrine of expression unius est exclusio alterius, that same statute makes a convicted murderer's testimony incompetent in any other proceeding. This contention might have some persuasive effect were it not for the existence of other statutes which dispel any such implication. A.R.S. § 12-2201 describes persons who may be witnesses as follows:
A.R.S. § 13-1653, subsec. C reads as follows:
"C. Persons sentenced to imprisonment in the state prison for any term shall not thereby be rendered incompetent as witnesses upon the trial of a criminal action or proceeding, or incapable of making and acknowledging a sale or conveyance of property."
"A. Every person, including a party, may testify in any civil or criminal proceeding, or before any person who has authority to receive evidence, except as otherwise expressly provided by law.
"B. A person shall not be incompetent to testify because he is a party to an action or proceeding or interested in the issue tried, or because he has been indicted, accused or convicted of a crime, or because of his religious opinions, or because he does not have any religious belief." (Emphasis added).
The above statute effectively negates the continued existence of any vestige of the common law rule which rendered felons incompetent as witnesses.
While a proceeding before the Industrial Commission is not in the strict sense either a criminal or civil proceeding, in our opinion a witness who would be competent to testify in either a criminal or civil proceeding would also be competent to give evidence in an administrative hearing of the nature here involved, where the rules of evidence and procedure are generally somewhat more relaxed than in a regular court proceeding. See A.R.S. § 23-942. Of course the Industrial Commission may take into consideration the fact of conviction in judging the credibility of the witness. In looking at the fact situation which was presented to the Commission, while there may be some question as to whether the shooting of the decedent was accidental or intentional, the remainder of the complained of testimony is in all respects consistent with the physical facts as gleaned from other sources. We conclude that the evidence was competent and furnished an adequate factual basis for the Commission's award.
A.R.S. § 23-942, prior to amendment effective January 1, 1969, read as follows:
"The commission shall not be bound by the rules of evidence or by technical or formal rules of procedure other than as provided in this chapter. The commission may conduct investigations in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out the spirit of this chapter."
Effective January 1, 1969 the subject matter of A.R.S. § 23-942 was incorporated into A.R.S. § 23-941, subsec. F.
In view of the foregoing conclusion we need not consider petitioner's contention that in the absence of such evidence, the "unexplained death presumption" would be applicable to the facts of this case and would compel a finding of compensability.
See Martin v. Industrial Commission, 73 Ariz. 401, 242 P.2d 286 (1952); Martin v. Industrial Commission, 75 Ariz. 403, 257 P.2d 596 (1953): State Compensation Fund v. Delgadillo, 14 Ariz. App. 242, 482 P.2d 491 (filed March 15, 1971); 1 A. Larson, The Law of Workmen's Compensation § 10.32, at 108 (1970).
The award is affirmed.
JACOBSON, P.J., and EUBANK, J., concur.