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Wells v. Industrial Commission of Arizona

Supreme Court of Arizona

July 14, 1945

RALPH L. WELLS, Petitioner,
v.
INDUSTRIAL COMMISSION OF ARIZONA, and RAY GILBERT, EARL G. ROOKS, and FRED E. EDWARDS, as Members of the Industrial Commission of Arizona, and HAROLD F. HENSLEY, Defendant Employer, Respondents

APPEAL by certiorari from an award of The Industrial Commission of Arizona.

Award affirmed.

Mr. Phil J. Munch, for Petitioner.

Mr. H. S. McCluskey, and Mr. David P. Jones, of Counsel, for Respondent Commission.

Morgan, J. Stanford, C. J., and LaPrade, J., concur.

OPINION

[63 Ariz. 265] Morgan, J.

The petitioner, from August 1, 1943, to April 23, 1945, was regularly employed as a salesman, and received $ 190 per month, with a bonus. Without the knowledge of his employer, and during hours when he was not engaged in his regular employment, he worked as a painter in the thirty days preceding his injury for two different employers, receiving a total of $ 40.95, thus

Page 114

making his total earnings for the thirty days immediately preceding his injury which occurred on April 23, while working as a painter, $ 230.95. The commission allowed him benefits on the basis of his total wages earned for the thirty-day period, exclusive of the bonus received from his regular employment.

From this award, petitioner has appealed. He takes the following positions: (1) Although during the [63 Ariz. 266] thirty days prior to the accident, petitioner earned only $ 40.95 from painting jobs, these actual earnings having been made during a period of thirteen days (half of a twenty-six day working month), he should have been allowed an additional $ 40.95 for the remaining thirteen days in which no work was actually performed, making the total average monthly wage from painting $ 81.90, thus making the basis of average monthly wages $ 271.90 instead of the amount actually earned; (2) the rate of pay petitioner was receiving in the painting industry was $ 11.70 per day, six hours' working time for twenty-six days, totaling $ 304.20, which, in any event, should have been the basis for the award; (3) the actual monthly wage of petitioner as a salesman, $ 190, should have been added to the average wage he could have secured for working continuously on the painting job, making the basis upon which the award should have been allowed, $ 494.20.

Several decisions of this and other courts have been called to our attention, none of which have very much bearing upon the question before us. However, they will be considered in due course. Primarily, the award and the claims of the petitioner must be determined by reference to Section 56-952, Arizona Code Annotated 1939, which provides for the measure of compensation. Before considering this section, however, we might call attention to the fact that the petitioner was insured in all of the various occupations in which he was employed, and that as to each of his employments he was an employee within the meaning of the Workmen's Compensation Law. He was a skilled painter and capable of earning the usual and ordinary wages paid to members of that craft. At the time of the injury he was working for the respondent Hensley, who had knowledge, however, that petitioner was also being employed by another contractor.

[63 Ariz. 267] Section 56-952, supra, provides that where an employee shall be injured by an accident arising out of and in the course of his employment, he shall receive compensation fixed on the basis of average monthly wage at the time of the injury. The second and third sentences of the section read as follows:

"The term 'monthly wage' shall mean the average wage paid during and over the month in which such employee is killed or injured. If the injured or killed employee has not been continuously employed for the period of thirty (30) days immediately preceding the injury or death, 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."

In making the award, the commission properly eliminated the bonus being paid by the regular employer to the petitioner, applying the rule announced in Kennecott Copper Corp. v. Industrial Comm., 61 Ariz. 387; 149 P.2d 687. It also applied the rule announced in Butler v. Industrial Comm., 50 Ariz. 516, 73 P.2d 703, and in Bamberger Electric R. Co. v. Industrial Comm., 59 Utah 257, 203 P. 345, that where a workman is employed by two or more employers, and is injured while in the employ of one, he is entitled to have his wages calculated on the total wages received. In the Butler case, the facts disclosed that the workman was traveling between the two different employments at the time of the injury and was, in effect, performing work for both employers, and compensation was divided between them. Here, at the time ...


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