Collins v. American Buslines, 5977

• Decision Date: 28 June 1955
• Docket Number: No. 5977,5977
• Parties: Joan Greenway COLLINS, widow, and Carroll Lee Collins, minor child of Adolphus Henry Collins, deceased, Petitioners, v. AMERICAN BUSLINES, Inc., Respondent Employer, The Industrial Commission of Arizona, Respondent Insurance Carrier.
• Court: Arizona Supreme Court

Page 214

286 P.2d 214

79 Ariz. 220

Joan Greenway COLLINS, widow, and Carroll Lee Collins, minor child of Adolphus Henry Collins, deceased, Petitioners, v. AMERICAN BUSLINES, Inc., Respondent Employer The Industrial Commission of Arizona, Respondent Insurance Carrier.

No. 5977.

Supreme Court of Arizona.

June 28, 1955.

Lewis, Roca, Scoville & Beauchamp and Walter Cheifetz, Phoenix, for petitioners.

Robert K. Park, Phoenix, John R. Franks, Donald J. Morgan, Phoenix, and John F. Mills, Prescott, of counsel, for respondent Industrial Commission.

LA PRADE, Chief Justice.

Review by certiorari of a determination of the Arizona Industrial Commission that it was without jurisdiction to hear a claim for compensation allegedly caused by the death of petitioner's husband while in the course of his employment.

The facts are these: Adolphus Henry Collins was employed as a bus driver by the American Buslines, Inc., a Nebraska corporation, in 1944, at El Paso, Texas. During the years of his employment he drove various bus routes throughout the Southwest. At the time of his death Collins was driving a bus route between Los Angeles, California and Phoenix, Arizona, from a home terminal in Los Angeles, where he was paid and lived with his family. On September 30, 1953, Collins was driving a regular return trip from Phoenix to Los Angeles. Near Ehrenburg, Arizona, a bus tire blew out and the resulting accident caused Collins' death. It was found by the Industrial Commission that the American Buslines, Inc., was not certified by the Arizona Corporation Commission to engage in intrastate commerce and that the bus company operated exclusively in interstate commerce. It was further found that Collins was covered by the workmen's compensation provisions of the state of California.

The Commission concluded that it was without jurisdiction to entertain petitioner's claim for the reason that decedent was not regularly employed in Arizona as that term is used in our workmen's compensation statute, Section 56-928, A.C.A.Cum.Supp.1952. Petitioner appeals from this determination alleging error.

The case presents two question: (1) was decedent, as a matter of law, not regularly employed in the state as contemplated by our workmen's compensation statute; and (2) is the Arizona Industrial Commission without jurisdiction in this case for the reason that petitioner was killed while engaged exclusively in interstate commerce and covered by the workmen's compensation laws of California?

The Commission held that decedent was not regularly employed within the contemplation of our workmen's compensation laws for the reason that he was hired outside of this state and divided his work between Arizona and California. The Commission based this conclusion on our decision of Industrial Commission v. Watson Bros. Transp. Co., Inc., 1953, 75 Ariz. 357, 256 P.2d 730. Petitioner contends that this definition of 'regularly employed' is without support in our statute.

On reviewing the Watson case, supra, it is to be noted that the question directly presented there was whether imposition of our workmen's compensation laws so as to obtain insurance premiums from an interstate employer would constitute an undue burden on interstate commerce. The case did not concern a claim for compensation by an injured employee. We held that the Commission could not require an employer to pay insurance premiums covering employees engaged in interstate commerce, who lived and were hired in other states, and who were covered by the workmen's compensation laws of another state while within Arizona. It was our view that this would compel the employer to obtain duplicate protection, and that such double premium payment would be an undue burden on interstate commerce. The employees in question were able to present their claims for injuries received in Arizona in another jurisdiction, for if such employees were not covered by the workmen's compensation laws of another state then there would have been no duplication upon which an undue burden could be said to exist, and in that event we pointed out that under the authority of Hall v. Industrial Commission of Ohio, 1936, 131 Ohio St. 416, 3 N.E.2d 367, there would be no constitutional restriction on the imposition of our workmen's compensation laws. The theory of the Watson decision was that an injured employee was to be limited in his choice of jurisdictions but not excluded altogether from an opportunity to benefit under workmen's compensation laws.

There is a vast distinction between the holding of the Watson case, supra, and the language found there and relied upon by the Commission. The definition of 'regularly employed' followed by the Industrial Commission excludes employees from the benefits of our workmen's compensation statute without any consideration of their coverage in other jurisdictions. In short, such employees may be left remediless under this definition.

We feel constrained to review the construction of the term 'regularly employed' enunciated in the Watson case and followed by the Commission here, for two reasons; first, the Watson case did not directly raise the question of the statutes of a claim by an injured employee who divides his work between this and another state as does the case at bar, and secondly, we hesitate to construe our workmen's compensation laws in a manner as to exclude employees injured in Arizona unless such construction is clearly required by the terms of the statute.

We have stated many times that our workmen's compensation laws are to be liberally construed, State ex rel. Industrial Commission v. Pressley, 1952, 74 Ariz. 412, 250 P.2d 992; Federal Mut. Liability Ins. Co. v. Industrial Commission of Arizona, 1926, 31 Ariz. 224, 252 P. 512; to place the burden of industrial accidents on industry rather than on the employee or the public. Statutory construction which excludes employees from its protection will require specific language to that effect. Marshall v. Industrial Commission, 1945, 62 Ariz. 230, 156 P.2d 729. Ambiguity is insufficient for then the question is to be resolved in favor of the employee rather than against him. English v. Industrial Commission, 1951, 73 Ariz. 86, 237 P.2d 815; Ossic v. Verde Central Mines, 1935, 46 Ariz. 176, 49 P.2d 396.

The term 'regularly employed' is defined in Section 56-928(a), A.C.A.1952 Cum.Supp., as

'* * * all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession, or occupation of an employer.'

The statute does not require that an employee hired elsewhere must work exclusively or continuously within this state to be considered regularly employed. A portion of the year is sufficient. Decedent had been employed by respondent-employer since 1944 to the time of his death. When killed in Arizona decedent was following a bus schedule which systematically required him to spend approximately forty percent of his working time in this state. Decedent worked 'only a portion of the year' in this state but that is all the statute requires. We find no specific language in our statute indicating that when decedent was killed in Arizona he was not regularly employed within the provisions of Section 56-928(a), supra.

Should the fact that decedent did not work exclusively within this jurisdiction affect our decision? We think not. An employee injured while within a jurisdiction temporarily has been held entitled to compensation in the state where the injury occurred, Johnson v. El Dorado Creosoting Co., La.App.1954, 71 So.2d 613; Pacific Employers Ins. Co. v. Industrial Commission of California, 1939, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, and even if some other jurisdiction would entertain the claim. The paramount interest of the state where the injury occurs was recognized in Pacific Employers Ins. Co. v. Industrial Accident Commission of California, supra, where the court observed at page 503 of 306 U.S., at page 633 of 59 S.Ct.:

'* * * Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power. * * * (than) the bodily safety and economic protection of employees injured within it.'

In support of this view of Larson points out in 2 Larson, The Law of Workmen's Compensation, 382, section 87:23 (1952):

'* * * the physical presence of the injured man within the state must concern the state. His medical and hospital bills are owed to local residents, who should not be required to go to foreign states for payment; the witnesses to the accident are within the state, and most of the best evidence bearing on the circumstances of the injury; * * * and, * * * the mere presence of a disabled and destitute human being within a state's borders is a social problem of concern to that state since the man may become a public charge if not provided for by compensation law.'

The accident, when it occurs here, leads to all the consequences which our workmen's compensation laws were designed to avoid. Where an employee has been and where he may go cannot alter what occurs while he is here, and the latter is the concern of this state. Ocean Accident and Guarantee Corporation, Ltd. v. Industrial Commission of Arizona, 1927, 32 Ariz. 275, 257 P. 644. We see no limitation in the language or policy of our workmen's compensation laws which would compel us to conclude that the people of Arizona have not intended to protect employees or themselves from absorbing the impact of industrial accidents occurring in Arizona because an employer requires his employees to divide their work between two states, and to the extent our case of Industrial Commission v. Watson Bors. Transp. Co., Inc., supra, indicates the contrary it is repudiated.

The next question presented by this appeal is whether the commerce clause, U. S. Constitution, Article I, Section 8, makes in-applicable our workmen's compensation laws for the...