MIAMI COPPER CO.
SCHOONOVER et al
Proceeding under the Workmen's Compensation Act by Isham H. Schoonover, claimant, opposed by the Miami Copper Company, employer. To review an award of the Industrial Commission of Arizona, consisting of Ray Gilbert and others, in favor of claimant, the employer brings certiorari.
Award set aside.
Morris & Malott, of Globe, for petitioner.
H. S. McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for respondent Industrial Commission.
Udall, Judge. Stanford, C. J., and LaPrade, J., concurring.
[65 Ariz. 240] Miami Copper Company has brought this matter here by writ of certiorari to have reviewed an award made May 15, 1946 by the Industrial Commission to one Isham H. Schoonover. The Commission granted the Company a rehearing but on July 11, 1946 entered its decision affirming the original award.
The facts are not in dispute and can be briefly stated. Schoonover had been in the employ of the Company since August 26, 1942. He was injured in an accident on March 6, 1946, as a result of which he suffered a temporary total disability for 35 days. The Commission was the insurance carrier for the Company. The employee at the time of the accident had a job classification of "timber helper" with a guaranteed base wage of $ 6.82 per day. During the thirty days immediately preceding the accident the employee, by his own efforts, earned
a total of $ 356.35, of which amount $ 180.73 represents the guaranteed base wage and $ 175.60 were his contract earnings in excess thereof. The Company followed the not unusual policy of making incentive bonus payments over the base pay under individual contracts with certain of its workmen. The terms were that some employees, including Schoonover, agreed to perform certain specified work and labor for certain contract prices. However if employee's production fell below the standard agreed upon he was to receive a guaranteed wage of $ 6.82, irrespective, this being the standard wages paid for similar work to other employees of his class who were not working under contract (only 25% of the Company's underground employees worked under individual contract, the other 75% received the stipulated wage). Where as here the compensation earned by the employee under the contract exceeded the guaranteed base wage, the employee was paid the full contract price for the work performed.
The Commission based its award to this injured employee on the basis of his total contract earnings for the preceding thirty days whereas the Company contends that the award should have been based only upon the amount earned by the employee under the guaranteed base wage during the same period. The sole question for our determination is which measure of compensation is the correct one to apply in this case.
[65 Ariz. 241] The controlling statutory provision is sec. 56-952, A.C.A.1939. The first two sentences of this section provide that employees or dependents will receive the compensation fixed "on the basis of average monthly wage at the time of injury" and that "The term 'monthly wage' shall mean the average wage paid during and over the month in which such employee is killed or injured." However, these general provisions are qualified with respect to work performed under certain types of contracts such as the one under which injured employee in this case was working. The last sentence of this section reads: "* * * If the employee is working under a contract by which he is guaranteed an amount per diem or per month, notwithstanding the contract price for such labor, then said employee or his subordinates or employees working under the terms of such contract, or his or their dependents in case of death, shall be entitled to receive compensation on the basis only of the guaranteed wage as set out in said contract of employment, whether paid on a per diem or a monthly basis, but in no event shall the basis be less than the wages paid to employees for similar work not under contract." (Emphasis supplied.)
We had occasion to construe this section of the code in the case of Kennecott Copper Corp. v. Industrial Commission (Jaime case) 61 Ariz. 387, 149 P.2d 687, on a factual situation that was identical with the present case, i. e. where we had both a guaranteed base wage and a contract price. We there held that the Legislature in language that was "clear, unambiguous and unequivocable" had fixed the basis for an award of compensation on the "guaranteed wage."
The Commission now advances two reasons why this ruling should no longer be followed. First they say we departed from it in a later decision rendered in the case of Barron v. Ambort,64 Ariz. 209, 167 P.2d 925. Such a contention is untenable being based on a misconstruction of our decision by the Commission. The facts there were distinguishable as not only the injured employee, but all of the employees of the dairy company were being paid a flat $ 75 per month, plus four per cent commission on all sales. No evidence was introduced showing wages paid for similar work to employees not under contract. Thus there was no guaranteed wage payable "notwithstanding the contract price". We then held that the last sentence of the code provision, quoted above, relating to computation of compensation on basis of guaranteed wage, can be applied only upon ...