Federal Mut. Liability Ins. Co. v. Industrial Commission of Arizona

• Decision Date: 05 July 1927
• Docket Number: Civil 2622
• Parties: FEDERAL MUTUAL LIABILITY INSURANCE COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF THE STATE OF ARIZONA and R. B. SIMS, BURT H. CLINGAN and H. S. McCLUSKEY, Members of Said THE INDUSTRIAL COMMISSION OF THE STATE OF ARIZONA, Respondents
• Court: Arizona Supreme Court

257 P. 982

32 Ariz. 293

FEDERAL MUTUAL LIABILITY INSURANCE COMPANY, a Corporation, Petitioner, v. THE INDUSTRIAL COMMISSION OF THE STATE OF ARIZONA and R. B. SIMS, BURT H. CLINGAN and H. S. McCLUSKEY, Members of Said THE INDUSTRIAL COMMISSION OF THE STATE OF ARIZONA, Respondents

Civil No. 2622

Supreme Court of Arizona

July 5, 1927

Original proceeding for writ of review to set aside award of The Industrial Commission in Injury No. X.-365, In re George Roberts. Award affirmed.

Messrs Melliss & Howard, for Petitioner.

Mr John J. Taheny, for Respondents.

OPINION

LOCKWOOD, J.

This matter has been before us previously in the case of Federal Mutual Liability Insurance Co. v. Industrial Commission, 31 Ariz. 224, 252 P. 512. Therein we held the Commission had awarded compensation under the wrong section of the statute (Laws 1925, chap. 83) and reversed the award. A new award was made, based ostensibly upon the subdivision of section 70 of the act which we held applied to cases of this nature, and petitioner has again brought the matter before us, claiming the Commission erred in this award even more grievously than in the first one.

The facts necessary for an understanding of the case are very simple. George Roberts, while working for the Salt River Valley Water Users' Association, received injuries resulting in his death. It is admitted these injuries arose out of and in the due course of his employment. He left surviving him a father and mother, and after the first award was set aside an award was made for them as partial dependents, under subdivision 6, section 70, of the Workmen's Compensation Act. The award was of fifteen per cent of the average monthly wage of the deceased for the life of the parents, or the survivor of them, and this award was commuted under section 76 of the act to a lump sum. The sole question involved in this appeal is whether or not the compensation allowed should have continued for the life of the parents, as held by the Commission, or only for the period of one hundred months, as contended by petitioner. In determining this it is necessary that we consider subdivisions 6 and 7 of the act, which read as follows:

"6. If there be no surviving wife (or dependent husband) or child under the age of eighteen years, there shall be paid to a parent, if wholly dependent for support upon the deceased employee at the time of his death, twenty-five per centum of the average monthly wage of the deceased during dependency, with an added allowance of fifteen per centum if two dependent parents survive; to the brothers or sisters under the age of eighteen years, if one is wholly dependent upon the deceased employee for support at the time of injury causing death, twenty-five per centum of the average monthly wage for the support of such brother or sister, until of the age of eighteen years. If more than one brother or sister is wholly dependent, thirty-five per centum of the average monthly wage at the time of injury causing death, divided among such dependents share and share alike. If there is no one of them wholly dependent, but one or more partly dependent, fifteen per centum divided among such dependents share and share alike.

"7. In all other cases, questions of total or partial dependency shall be determined in accordance with the facts as the facts may be at the time of the injury. If the deceased employee leaves dependents only partially dependent upon his earnings for support at the time of the injury causing his death, the monthly compensation to be paid shall be equal to the same proportion of the monthly payments for the benefit of persons totally dependent as the amount contributed by the employee to such partial dependents bears to the average wage of deceased at the time of the injury resulting in his death. The duration of such compensation to partial dependents shall be fixed by the commission in accordance with the facts shown, but in no case exceed compensation for one hundred months."

It is argued by petitioner that the language in the last sentence of subdivision 7, that "the duration of such compensation to partial dependents shall be fixed by the commission in accordance with the facts shown, but in no case exceed compensation for one hundred months," applies to this case. It is, of course, the cardinal rule of construction of this, as of other statutes, that the intent of the legislature should prevail. Federal Mut. Life Ins. Co. v. Industrial Com., supra.

On examining the act as a whole there are certain features which stand out prominently therein. First, it is highly remedial in its character, and is intended to be construed liberally for the benefit of those coming under its protection. Second the period for which compensation is allowed,...