Award set aside.
Greg Garcia, of Phoenix, for petitioner.
Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondents Industrial Commission of Arizona.
La Prade, Chief Justice. Udall, Stanford, Phelps and De Concini, concur.
La Prade, Chief Justice.
[70 Ariz. 56] By this proceeding a review is asked on the refusal of the Industrial Commission to make an award to Mrs. Rita Villapando, claiming to be a dependent within the provisions of section 56-953(a) 6a, A.C.A.1939, upon her deceased son, who received fatal injuries growing out of an accident while in the employ of respondent Magma Copper Co. The son Augustine Villapando, by falsifying his age, prevailed upon the company to hire him in August, 1946, at a time when he was a minor of the age of fifteen years and six months. The employment continued until July 3, 1947, the date of the accident. The refusal to award dependency benefits was upon the ground that the mother failed to establish dependency, partial or total. The son was not married and left no dependent children.
The award is challenged upon two grounds: (1) that the commission was without jurisdiction in the premises for the reason that the employee, being a minor, was illegally employed; and (2) that the award is contrary to the evidence and the law.
The first assignment of error is without merit. The rule established by this court is that the exclusive remedy of a [70 Ariz. 57] minor employee for injuries is under the Workmen's Compensation Act in the absence of notice to the contrary. S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 182 P.2d 931.
A correct disposition of the second assignment of error necessitates a complete review of the evidence adduced before the commission. It appears without contradiction that Mr. and Mrs. Villapando at the date of the accident had living with them four children, including the deceased, all in their early teens, and one granddaughter, age eleven years; that the deceased earned approximately $ 172 per month, all of which he turned over to his mother and which she expended for household expenses, clothing for brother and sisters, etc.; that the deceased received back from the mother five to ten dollars per month for spending money; that Mr. and Mrs. Villapando had unpaid bills of "about $ 400" when the boy went to work; and that Mr. Villapando's wages were approximately $ 286 per month. The wife testified that the earnings of the husband were insufficient "to keep up the entire family," and that the deceased son went to work because the family needed assistance.
In opposition to the claim of dependency the company offered the testimony of the husband to the effect that he had been able to maintain the family prior to the employment of the son, and that the son "started to work because he wanted to." He readily admitted that the son delivered his wage check to the mother who used the proceeds to "help me pay bills," and that his wage check wasn't "enough."
Prior to this testimony that his check "wasn't enough" he had answered "yes" to the following question: "In other words, you feel you have supported this family for the last ten or fifteen years just ...