BARRON et al.
AMBORT et al
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.
Morgan, Judge. Stanford, C. J., and LaPrade, J., concur.
[64 Ariz. 211] 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 ...