Barron v. Ambort
| Decision Date | 08 April 1946 |
| Docket Number | 4880 |
| Citation | 167 P.2d 925,64 Ariz. 209 |
| Parties | BARRON et al. v. AMBORT et al |
| Court | Arizona Supreme Court |
Appeal by Certiorari from an Award of the Industrial Commission.
Proceeding under the Workmen's Compensation Act by Mildred Harding Barron, natural guardian of the estate and person of James Russell Harding, a minor, dependent of Russell Harding deceased, to recover compensation for death of Russell Harding, opposed by Aux Ambort and another, doing business as Sunland Dairy, employer, and the Industrial Commission of Arizona, insurance carrier. From an award of compensation in an insufficient amount, the claimant appeals by certiorari.
Award set aside.
Westover & Mansfield, of Yuma, and Minne & Sorenson and Geo. T Wilson, both of Phoenix, for petitioner.
H. S McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for respondents.
On June 20, 1940, one Russell Harding met with an accident while in the employ of the individual defendants doing business as Sunland Dairy. The commission was the insurance carrier for the employers. As a result of the injury received, the employee died. He had been working for the dairy company for more than one month, under an oral contract of hire guaranteeing a wage of $ 75 per month, plus 4% commission on all sales. His earnings or wages for the month mounted to the sum of $ 331.56, including the $ 75 and 4% commissions.
The deceased left surviving him a dependent child, James Russell Harding, nearly seven years of age. Claim was duly made, on behalf of the minor, by his guardian. The evidence before the commission indicated that $ 75 per month was approximately 20% of the wages received by employees for similar work, all of whom were employed and paid under a like contract system. No evidence was, nor could be, introduced before the commission showing wages paid for similar work to employees not under contract.
The commission, being under the impression that the opinion of this court in Kennecott Copper Corp. v. Industrial Commission and Jaime, 61 Ariz. 387, 149 P.2d 687, construing the last sentence of section 56-952, A.C.A.1939, required them to limit the amount of the award to the guaranteed wage, made an allowance based on $ 75 per month.
The petitioner has appealed to this court, asking that the award be set aside, and that in lieu thereof the award be based on the average monthly wage or earnings of $ 331.56.
The commission's only contention is that the award must be affirmed unless we shall disaffirm or distinguish the Kennecott-Jaime case, supra.
While it is our view that the Kennecott decision has no application to the situation here, this is not to be taken as a criticism of the commission's reliance thereon. The language of the court, in construing section 56-952, supra, must be considered in the light of the facts in that case. There the guaranteed wage, which was being considered, was not less than the wages paid for similar work to employees not under contract.
The purpose and intent of the Workmen's Compensation Act, Code 1939, § 56-901 et seq., is that compensation shall be based on average monthly wage or earning capacity. We had occasion, in the recent case of Wells v. Industrial Comm., Ariz., 161 P.2d 113, 115, to discuss this phase of the compensation law, and particularly the provisions of section 56-952, exclusive of the last sentence thereof. We called attention to the provisions of that section requiring that compensation be "fixed on the basis of average monthly wage", and that "The term 'monthly wage' shall mean the average wage paid during and over the month in which such employee is killed or injured." We pointed out that where the employee had not been continuously employed for thirty days preceding the accident, then the law provides, "the average monthly wage shall be such sum as, having regard to the previous wage of the injured employee, or of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, reasonably represents the monthly earning capacity of the injured employee in the employment in which he is working at the time of the accident."
The Workmen's Compensation Act is remedial in character and it must be given a liberal construction to accomplish its intended purposes. Butler v. Industrial Comm., 50 Ariz. 516, 73 P.2d 703; Wells v. Industrial Comm., supra; Federal Mut. L. Ins. Co. v. Industrial Comm., 31 Ariz. 224, 252 P. 512; Ocean Accident & Guar. Corp. v. Industrial Comm., 32 Ariz. 265, 257 P. 641; Federal Mut. L. Ins. Co. v. Industrial Comm., 32 Ariz. 293, 257 P. 982; Kress & Co. v. Industrial Comm., 38 Ariz. 330, 299 P. 1034. This court has, in construing the compensation act, consistently held that where there is any reasonable doubt, that construction must be adopted "which will best effect the purpose of seeing that the injured workman is reasonably compensated for the loss of his earning power caused by the injuries which he has sustained through a compensable accident." Ossic v. Verde Central Mines, 46 Ariz. 176, 49 P.2d 396, 401.
There can be no question that the 4% commission was as much a part of the wage of the deceased as the $ 75 which he was to be paid. The agreement, as we understand it, was for $ 75 plus 4% commissions. These commissions were the result of the personal efforts of the deceased, and were his earnings and wages. In the late case of Phoenix Baking Co. v. Vaught Ariz., 156 P.2d 725, we laid down this rule in a tort action. The same rule applies for workmen who are engaged in an industry covered by the terms of the compensation law. The commissions here were in no sense a bonus in the nature of a gratuity or an amount allowed from the profits of the business, which might or might not be paid to the employee. It is our view, however, that whether the earnings are denominated bonus or commissions, if they are the result of the personal efforts of the employee and would be recoverable by him in an action at law, they constitute wages or earnings. Where a bonus is paid generally to employees at the end of a year, or otherwise, out of the profits of the employer's business, it does not constitute personal earnings of any particular employee. The payment in such case results from the collective efforts of those employed in the business, the management of its operation and the capital involved. Such a bonus cannot be considered in calculating the average monthly wages or earnings of employees under the terms of the compensation law. Whether an employee is employed for one month or one year, if injured while employed in a compensable occupation, he must be allowed compensation on the basis, as provided in the act, of average monthly wages or earnings at the time of the injury. Kennecott Copper Corp. v. Industrial Comm., Ariz., 158 P.2d 887. It would be impracticable to determine what this average monthly wage would be at the time of the injury if a bonus of the character mentioned which may or may not...
To continue reading
Request your trial
-
Maricopa County v. Industrial Com'n of Arizona, 1
...his behalf to a Union Health, Welfare and Pension fund, and held that it should not be included as wages. Relying on Barron v. Ambort, 64 Ariz. 209, 167 P.2d 925 (1946) we said: Whether the benefits are obtained by virtue of a union agreement, as here, or by the effort of government, as in ......
-
Lazarus v. Industrial Com'n of Arizona
...received by an employee in lieu of cash (Harvey Auto Supply); a 40% commission on all sales made by the employee (Barron v. Ambort, 64 Ariz. 209, 167 P.2d 925 (1946)); "a house, utilities, milk, butter, eggs, and meat whenever cattle were slaughtered" (Matlock v. Industrial Comm'n, 70 Ariz.......
-
Fletcher v. Industrial Commission
...Marum, no employees doing a particular activity were paid less than the guaranteed wage. The petitioner's reliance on Barron v. Ambort, 64 Ariz. 209, 167 P.2d 925 (1946), is misplaced. That case involved an employee who was guaranteed a monthly wage of $75.00 plus a four percent commission ......
-
Leslie v. Reynolds
...court approved this finding, and we think the evidence supports it. Both appellees and appellants cite the case of Barron v. Ambort, 64 Ariz. 209, 167 P.2d 925. We do not believe it is applicable to the facts present Ordinarily, a bonus is not a gift or a gratuity but is a sum paid for serv......