Joan Greenway COLLINS, widow, and Carroll Lee Collins, minor child of Adolphus Henry Collins, deceased, Petitioners,
AMERICAN BUSLINES, Inc., Respondent Employer, The Industrial Commission of Arizona, Respondent Insurance Carrier.
[79 Ariz. 221] Lewis, Roca, Scoville & Beauchamp and Walter Cheifetz, Phoenix, for petitioners.
Robert K. Park, Phoenix, John R. Franks, Donald J. Morgan, Phoenix, and John F. Mills, Prescott, of counsel, for respondent Industrial Commission.
LA PRADE, Chief Justice.
Review by certiorari of a determination of the Arizona Industrial Commission that it was without jurisdiction to hear a claim for compensation allegedly caused by the death of petitioner's husband while in the course of his employment.
The facts are these: Adolphus Henry Collins was employed as a bus driver by the American Buslines, Inc., a Nebraska corporation, in 1944, at El Paso, Texas. During the years of his employment he drove various bus routes throughout the Southwest. At the time of his death Collins was driving a bus route between Los Angeles, California and Phoenix, Arizona, from a home terminal in Los Angeles, where he was paid and lived with his family. On September 30, 1953, Collins was driving a regular return trip from Phoenix to Los Angeles. Near Ehrenburg, Arizona, a bus tire blew out and the resulting accident caused Collins' death. It was found by the Industrial Commission that the American Buslines, Inc., was not certified by the Arizona Corporation Commission to engage in intrastate commerce and that the bus company operated exclusively in interstate commerce. It was further found that Collins was covered by the workmen's compensation provisions of the state of California.
The Commission concluded that it was without jurisdiction to entertain petitioner's claim for the reason that decedent was not regularly employed in Arizona as that term is used in our workmen's compensation statute, Section 56-928, A.C.A.Cum.Supp.1952. Petitioner appeals from this determination alleging error.
The case presents two question: (1) was decedent, as a matter of law, not regularly employed in the state as contemplated by our workmen's compensation statute; and (2) is the Arizona Industrial Commission [79 Ariz. 222] without jurisdiction in this case for the reason that petitioner was killed while engaged exclusively in interstate commerce and covered by the workmen's compensation laws of California?
The Commission held that decedent was not regularly employed within the contemplation of our workmen's compensation laws for the reason that he was hired outside of this state and divided his work between Arizona and California. The Commission based this conclusion on our decision
of Industrial Commission v. Watson Bros. Transp. Co., Inc., 1953, 75 Ariz. 357, 256 P.2d 730. Petitioner contends that this definition of 'regularly employed' is without support in our statute.
On reviewing the Watson case, supra, it is to be noted that the question directly presented there was whether imposition of our workmen's compensation laws so as to obtain insurance premiums from an interstate employer would constitute an undue burden on interstate commerce. The case did not concern a claim for compensation by an injured employee. We held that the Commission could not require an employer to pay insurance premiums covering employees engaged in interstate commerce, who lived and were hired in other states, and who were covered by the workmen's compensation laws of another state while within Arizona. It was our view that this would compel the employer to obtain duplicate protection, and that such double premium payment would be an undue burden on interstate commerce. The employees in question were able to present their claims for injuries received in Arizona in another jurisdiction, for if such employees were not covered by the workmen's compensation laws of another state then there would have been no duplication upon which an undue burden could be said to exist, and in that event we pointed out that under the authority of Hall v. Industrial Commission of Ohio, 1936, 131 Ohio St. 416, 3 N.E.2d 367, there would be no constitutional restriction on the imposition of our workmen's compensation laws. The theory of the Watson decision was that an injured employee was to be limited in his choice of jurisdictions but not excluded altogether from an opportunity to benefit under workmen's compensation laws.
There is a vast distinction between the holding of the Watson case, supra, and the language found there and relied upon by the Commission. The definition of 'regularly employed' followed by the Industrial Commission excludes employees from the benefits of our workmen's compensation statute without any consideration of their coverage in other jurisdictions. In short, such employees may be left remediless under this definition.
We feel constrained to review the construction of the term 'regularly employed' enunciated in the Watson case and followed by the Commission here, for two reasons; first, the Watson case did not directly raise the question of the statutes of a claim by an [79 Ariz. 223] injured employee who divides his work between this and another state as does the case at bar, and secondly, we hesitate to construe our workmen's compensation laws in a manner as to exclude employees injured in Arizona unless such construction is clearly required by the terms of the statute.
We have stated many times that our workmen's compensation laws are to be liberally construed, State ex rel. Industrial Commission v. Pressley, 1952, 74 Ariz. 412, 250 P.2d 992; Federal Mut. Liability Ins. Co. v. Industrial Commission of Arizona, 1926, 31 Ariz. 224, 252 P. 512; to place the burden of industrial accidents on industry rather than on the employee or the public. Statutory construction which excludes employees from its protection will require specific language to that effect. Marshall v. Industrial Commission, 1945, 62 Ariz. 230, 156 P.2d 729. Ambiguity is insufficient for then the question is to be resolved in favor of the employee rather than against him. English v. Industrial Commission, 1951, 73 Ariz. 86, 237 P.2d 815; Ossic v. Verde Central Mines, 1935, 46 Ariz. 176, 49 P.2d 396.
The term 'regularly employed' is defined in Section 56-928(a), A.C.A.1952 Cum.Supp., as
'* * * all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession, or occupation of an employer.'
The statute does not require that an employee hired elsewhere must work exclusively or continuously within this state to be considered regularly employed. A portion of the year is sufficient. Decedent had been employed by respondent-employer since 1944 to the time of his death. When killed
in Arizona decedent was following a bus schedule which systematically required him to spend approximately forty percent of his working time in this state. Decedent worked 'only a portion of the year' in this state but that is all the statute requires. We find no specific language in our statute indicating that when decedent was killed in Arizona he was not regularly employed within the provisions of Section 56-928(a), supra.
Should the fact that decedent did not work exclusively within this jurisdiction affect our decision? We think not. An employee injured while within a jurisdiction temporarily has been held entitled to compensation in the state where the injury occurred, Johnson v. El Dorado Creosoting Co., La.App.1954, 71 So.2d 613; Pacific Employers Ins. Co. v. Industrial Commission of California, 1939, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940, and even if some other jurisdiction would entertain the claim. The paramount interest of the state where the injury occurs was recognized in Pacific Employers Ins. Co. v. Industrial Accident Commission of California, supra, where the court observed at page 503 of 306 U.S., at page 633 of 59 S.Ct.:
[79 Ariz. 224] '* * * Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power. * * * (than) the bodily safety and economic protection of employees injured within it.'
In support of this view of Larson points out in 2 Larson, The Law of Workmen's Compensation, 382, section 87:23 (1952):
'* * * the physical presence of the injured man within the state must concern the state. His medical and hospital bills are owed to local residents, who should not be required to go to foreign states for payment; the witnesses to the accident are within the state, and most of the best evidence bearing on the circumstances of the injury; * * * and, * * * the mere presence of a disabled and destitute human being within a state's borders is a social problem of concern to that state since the man may become a public charge if not provided for by compensation law.'
The accident, when it occurs here, leads to all the consequences which our workmen's compensation laws were designed to avoid. Where an employee has been and where he may go cannot alter what occurs while he is here, and the latter is the concern of this state. Ocean Accident and Guarantee Corporation, Ltd. v. Industrial Commission of Arizona, 1927, 32 Ariz. 275, 257 P. 644. We see no limitation in the language or policy of our workmen's compensation laws which would compel us to conclude that the people of Arizona have not intended to protect employees or themselves from absorbing the impact of industrial accidents occurring in Arizona because an employer requires his employees to divide their work between two states, and to the extent our case of Industrial Commission v. Watson Bors. Transp. Co., Inc., supra, indicates the contrary it is repudiated.
The next question presented by this appeal is whether the commerce clause, U. S. Constitution, Article I, Section 8, makes in-applicable our workmen's compensation laws for the reason that decedent was engaged exclusively in interstate commerce when killed in Arizona, and was covered under the workmen's compensation laws of California.
There appears to be no federal legislation specifically or impliedly prohibiting the states from applying workmen's compensation laws to the employees of interstate motor carriers. The Federal Motor Carrier Act of 1935, 46 U.S.C.A. § 301 et seq., does not alter this view for it contains no provisions for compensating injured employees or language which restricts the states. Basham v. Southeastern Motor Truck Lines, Inc., 1947, 184 Tenn. 532, 201 S.W.2d 678; Hall v. Industrial Commission of Ohio, supra; Etters v. Trailways of New England, Inc., 1943, 266 A.D. 929, 43 N.Y.S.2d 884; State ex rel. Washington Motor Coach Co. v. Kelly, 1937, 192 [79 Ariz. 225] Wash. 394, 74 P.2d 16. This has been recognized by us in Industrial Commission v. Watson Bros. Transp. Co., supra.
While no specific federal legislation prohibits the application of state workmen's
compensation laws this does not mean that no restraints exist upon state activities. A further limitation must be recognized. In Southern Pac. Co. v. State of Arizona ex rel. Sullivan, 1945, 325 U.S. 761, at pages 766, 767, 65 S.Ct. 1515, at page 1519, 89 L.Ed. 1915 (the train limit case), the U. S. Supreme Court observed, in part:
'Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. * * * it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it. * * * But * * * the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, * * *.' (Citations omitted.)
Therefore, the question we are faced with is whether application of our workmen's compensation laws would constitute an undue burden on interstate commerce under the facts of this case, in the absence of federal legislation.
In the Watson case we held that exacting double premiums, under the facts there, would be an undue burden. The case at bar involves a claim for compensation rather than a suit to obtain insurance premiums, and the possibility that double compensation would result from an award in this and another state is highly improbable. Under the doctrine of Magnolia Petroleum Co. v. Hunt, 1943, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413, the prior award would be res judicata between the parties and entitled to full faith and credit, and under the modifying opinion of the subsequent case of Industrial Commission of Wasconsin v. McCartin, 1947, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, 169 A.L.R. 1179, a first award would be credited to the second and result in only one total compensation. Yet while duplicate compensation is not threat, can jurisdiction to establish liability under our laws be reconciled with our holding in the Watson case? Premium payments, under our laws, are for the purpose of insuring against possible liability under our laws. If no jurisdiction exists upon which the Arizona Industrial Commission can lawfully exact premiums, does that necessarily imply that we are without jurisdiction to establish liability on the same set of facts? We fail to see how the rules may differ.
If jurisdiction exists to find employer liability, the reason for premiums exists in full force-the threat of this liability. Employers insure for no other [79 Ariz. 226] reason. An employer who engages in business in various jurisdictions, all of which will extend jurisdiction to an injured employee for the same injury, cannot anticipate which state's laws will be invoked by the employee. Under such conditions his only recourse would be to establish protection from liability in all such states by the payment of insurance premiums. The threat of liability would require duplicate premiums and it is this duplication which creates the undue burden on interstate commerce. It is the need imposed by the laws of our state to insure twice that constitutes the undue burden, not the manner in which this duplication is obtained. We hold that to assume jurisdiction under our workmen's compensation laws on the facts of this case would constitute an undue burden on interstate commerce. Since the respondent-employer here is engaged exclusively in interstate commerce the case of Holly v. Industrial Commission, 1943, 142 Ohio St. 79, 50 N.E.2d 152, 148 A.L.R. 868, cited by petitioner, is not in point.
Petitioner argues that to deprive the Commission of jurisdiction may leave her remediless in a limbo of interstate commerce. The thought is that if we decline jurisdiction for the reason that decedent was engaged in interstate commerce then other states may do the same, and since no federal compensation plan exists no remedy would be available. We fail to see how this result can obtain under our decision here or in the Watson case. We do not decline jurisdiction merely for the reason that decedent was engaged in interstate commerce, but in view of an additional consideration-that
he was also covered in another jurisdiction. If decedent had not been covered in California then there would be no duplication upon which to find an undue burden; it is not the application of state workmen's compensation laws which is prohibited under ...