Morrison-Merrill & Co. v. Industrial Commission of Utah

• Decision Date: 27 January 1933
• Docket Number: 5337
• Parties: MORRISON-MERRILL & CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al
• Court: Utah Supreme Court

18 P.2d 295

81 Utah 363

MORRISON-MERRILL & CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5337

Supreme Court of Utah

January 27, 1933

Original proceeding by Morrison-Merrill & Company and another against the Industrial Commission of Utah and another, to review an award of workmen's compensation, in favor of Hyrum Walton.

AWARD AFFIRMED.

Bagley Judd & Ray and A. H. Nebeker, all of Salt Lake City, for plaintiffs.

Joseph Chez, Attorney General, and L. A. Miner, Special Deputy Attorney General, for defendants.

ELIAS HANSEN, J. FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur. STRAUP, C. J., dissenting.

OPINION

ELIAS HANSEN, J.

The defendant Industrial Commission awarded the defendant Hyrum Walton compensation at the rate of $ 13.85 per week for a period of 28 4/7 weeks on account of temporary total disability resulting from an injury which Mr. Walton received while in the employ of the plaintiff MorrisonMerrill & Co. The plaintiff Aetna Life Insurance Company was the insurance carrier of Morrison-Merrill & Co. at the time Mr. Walton was injured. Plaintiffs prosecute this proceeding to review the award. The sole ground of their complaint is that the weekly compensation awarded by the commission is excessive. They contend that Mr. Walton was, during his disability, entitled to receive only $ 6.64 per week and that the award of $ 13.85 per week is contrary to law. The facts out of which this controversy arose are not in dispute. The evidence together with a stipulation of the parties establish these facts: Mr Walton was injured July 7, 1931, while engaged in his employment with Morrison-Merrill & Co., a corporation, subject to the provisions of the Industrial Act. At the time of his injury and prior thereto when in the employ of Morrison-Merrill & Co. he was paid $ 4 per day. Morrison-Merril & Co. operated its business regularly on the basis of 5 1/2 days per week. Prior to his injury Mr. Walton worked only at intervals for Morrison-Merrill & Co. He also worked for others, but the record is silent as to the basis upon which he was paid when employed by such others. Between January 3, 1931, and July 7, 1931, both dates inclusive, he earned from Morrison-Merrill & Co. the sum of $ 61.60. During the same period of time he earned a total of $ 115 from other employers making a total sum of $ 176.60 earned during the six months immediately preceding his injury. It will thus be noted that during the 26 4/7 weeks immediately preceding his injury Mr. Walton earned an average of $ 6.64 per week. Plaintiff contends that under a proper construction of our Industrial Act Mr. Walton was entitled to an award of compensation based upon such average earnings and no more. In making the award it is evident that the commission did not take into consideration the fact that Mr. Walton's employment was not continuous. It arrived at the amount of the award by multiplying $ 4 per day by 300 by 60 per cent and dividing the product thus obtained by 52. The question thus to be determined is: Did the commission under the facts disclosed by this record use the right method in arriving at the amount of compensation that should be awarded? The provisions of the Industrial Act touching the question here presented for determination are contained in Laws of Utah 1921, c. 67. It is there provided:

Sec. 3112. "The following terms as used in this title shall be construed as follows: * * *

"8. The term 'average weekly earnings' shall mean the average weekly earnings arrived at by rule provided in Section 3142."

Sec. 3137. "In case of temporary disability, the employee shall receive 60 per cent of his average weekly wages so long as such disability is total, not to exceed a maximum of $ 16 per week, and not less than a minimum of $ 7 per week; provided that where the wage earned at the time of injury is less than $ 7 per week; then in such cases the amount of wages earned should be the amount of compensation to be paid; but in no case to continue for more than six years from the date of the injury, or to exceed $ 5000."

Sec. 3142. "The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits, and shall be arrived at and determined in the following manner, to wit: employment shall mean pursuit in the usual trade, business, or profession of the employer. Five and one-half or six days employment shall mean pursuit in the usual trade, business, or profession, the usual operation of which is six days or less per week. Seven day employment shall mean pursuit in the usual trade, business or profession, the usual operation of which is seven days per week. The average weekly wage shall be determined as follows:

"1. Determine the contract of hire existing at the time of the injury, whether upon annual, month, week, day, hour, or piece basis;

"2. Determine whether the employment is operated on a five and one-half, six or seven day basis.

"3. Determine daily wage as follows:

"(a) If the wage is on an annual basis, and the employment is seven days per week, divide the annual salary by 364 days. Result--daily wage. If the employment is five and one-half or six days per week, divide annual salary by 312 days. Result--daily wage.

"(b) If wage is on monthly basis, multiply monthly salary by 12 and proceed as above (a) to determine daily wage.

"(c) If the wage is on a daily basis no rule is required.

"(d) If the wage is on an hourly basis, multiply pay per hour by the number of hours said employment regularly operates, or if operation is not regular, use eight hours as a day.

"(e) If the wage is on piece basis, use the average daily earnings for a reasonable period in which employment has been regular. Divide the amount earned by the number of days worked in such period. If the duration of employment has been too short to determine as above, then use the wage of an average employee, taking into consideration the experience of said employee, and determine as above, (a).

"(f) If the wage is on part-time basis, and the employment is regular, the wage shall be extended to full time basis, or that wage the injured would earn if working full time in such employment, and determine as above (a).

"4. To determine average weekly wage, if the employment is five and one-half or six days per week, multiply the daily wage, as determined by the foregoing method, by 300 and divide by 52. If the employment is seven days per week, multiply the daily wage, as determined above, by 332 days and divide by 52.

"5. To determine weekly compensation, let D represent daily wage.

"If 5 1/2 or 6 days of employment per week--Dx300x60/52=weekly compensation.

"If 7 days of employment per week--Dx332x60/52=weekly compensation.

"6. To determine daily compensation, divide weekly compensation by seven."

Prior to the amendment of the Industrial Act in 1921 the Legislature had not provided any rule for the determination of compensation under a state of facts such as are presented in this case. The only guide for fixing compensation was contained in Comp. Laws Utah 1917, § 3142, wherein it was provided that "the average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits." In construing the statute as it then was, this court held that where the employment is continuous the average weekly wage "may be computed by multiplying the average daily wage by 300 and dividing by 52; but, where the employment is intermittent, the average weekly wage is determined by dividing the aggregate amount earned by the number of weeks including the weeks in which no work was done." State Road Commission v. Industrial Commission, 56 Utah 252, 190 P. 544. The foregoing quotation is taken from the syllabus. It reflects the conclusion reached by this court in that case. Other cases touching the construction that should be given section 3142 before it was amended, and which are in harmony with the conclusions reached in the case of State Road Comm. v. Industrial Comm., supra, are: Uintah Power & Light Co. v. Industrial Comm., 56 Utah 169, 189 P. 875; Geo. A. Lowe Co. v. Industrial Comm., 56 Utah 519, 190 P. 934; Utah Fuel Company v. Industrial Comm., 59 Utah 46, 201 P. 1034. In the case of Bamberger Electric R. Co. v. Industrial Comm., 59 Utah 257, 203 P. 345, an employee was employed by two employers. He spent part of his time for each employer. While engaged in the performance of his...