Arizona Copper Co., Ltd. v. Burciaga

• Decision Date: 21 December 1918
• Docket Number: Civil 1556
• Parties: ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellant, v. ENRIQUE BURCIAGA, Appellee
• Court: Arizona Supreme Court

177 P. 29

20 Ariz. 85

ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellant, v. ENRIQUE BURCIAGA, Appellee

Civil No. 1556

Supreme Court of Arizona

December 21, 1918

APPEAL from a judgment of the Superior Court of the county of Greenlee. F. B. Laine, Judge. Reversed and remanded.

STATEMENT OF FACTS BY THE COURT.

The appellee was employed by the appellant about its mines at Morenci, in said Greenlee county. One of appellee's duties required him to take samples of ore from the workings of the mine. While engaged in the performance of such duty he was necessarily standing in a dangerous position, one foot on the rungs of a ladder, and the other bracing against a wall. The ladder was suspended from above. In taking samples he necessarily used a hammer in one hand and a moil, a kind of rock chisel, in the other hand. His duty required him to cut samples of ore at points on the ledge about 5 feet apart. Appellee was cutting the third sample, or about 15 feet from the bottom of the particular working, standing as mentioned. Another employee of appellant's was assisting by holding a basket in which to catch the ore cut by appellee. So occupied, the ladder turned, because some board or brace supporting it near the lower end fell, and appellee fell to the bottom of the workings, a distance of from 10 to 15 feet. He alleges that he sustained serious injuries from such fall. This action was prosecuted under the employers' liability law (chapter 6 of title 14, Revised Statutes of Arizona of 1913). The plaintiff recovered judgment in the sum of $7,000 and defendant appeals from an order refusing a new trial, and from such judgment.

Mr. E W. Lewis, Mr. W. C. McFarland and Mr. H. A. Elliot, for Appellant.

Mr. E V. Horton, for Appellee.

OPINION

CUNNINGHAM, C. J.

(After Stating the Facts as Above). This record and appellant's assignment of errors present the following questions requiring notice and some discussion: The admissibility of the testimony of a Dr. Stanton with regard to a statement made by plaintiff as to the state of plaintiff's physical condition at a time prior to plaintiff's alleged injuries, whether the defendant employer's negligence becomes an element of damages recoverable in an action founded upon said employers' liability law, and the measure of damages recoverable in such an action.

This witness was employed by the defendant in its medical department, and as such, under his employment, he treated the defendant's employees and their families when required. He testified:

That he knew the plaintiff and the plaintiff's wife.

"I had occasion in the past to confine plaintiff's wife from childbirth. That was the last part of April, 1915. At that time I was not treating Enrique Burciaga, the plaintiff, and he was not at that time consulting me in any capacity as a patient of mine."

"Q. Now at the time of this confinement, state what, if any, conversation you had with this plaintiff, Enrique Burciaga, in which he stated to you his general physical condition and his health at that time."

The plaintiff objected "on the ground that it is privileged, because this particular witness was treating his wife and also this plaintiff." The objection was sustained for the expressed reason that the communication was privileged. Thereupon the defendant offered to prove by the said witness:

"That at the time this witness was in attendance upon the wife of Enrique Burciaga, the plaintiff in this case, and at the time she was being confined, this plaintiff made a statement to this witness that he [plaintiff] had syphilis -- he, the plaintiff, had syphilis; that he wanted to know whether or not the child showed signs of syphilis; that he had had syphilis for a period antedating the time of conception and antedating the time of the occurrence of the claimed accident in this case; and that there didn't at that time exist between the plaintiff and this physician any relation of physician and patient, and that these disclosures were not made for the purpose of diagnosis or treatment, but were purely voluntary on the part of the plaintiff."

This offer was rejected.

The ruling of the court on the objection indicates that the court based the ruling upon paragraph 1677(6), Revised Statutes of Arizona of 1913. Paragraph 1677(6) is as follows:

"The folowing persons cannot be witness in civil action: . . . . A physician or surgeon cannot be examined, without the consent of his patient, as to any communication made by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of such patient."

The objection to the effect that the physician was disqualified to answer the question and disclose the statement made to him by the plaintiff, because witness was "treating his wife, and also this plaintiff," was good, if a fact, because of paragraph 1677(6). The defendant, among other things, offered to prove that at the time the communication was made "that there didn't at that time exist between the plaintiff and this physician any relation of physician and patient, and that these disclosures were not made for the purpose of . . . treatment, but were purely voluntary on the part of the plaintiff."

The objection had been ruled upon before the offer was made, and technically when the offer was made the issue was presented to the court to determine from the evidence whether the relation of physician and patient existed between plaintiff and the witness at the time the communication was made as a preliminary fact precedent to the admissibility of the evidence of the contents of the communication. The trial court refused to hear the preliminary evidence, and thereby assumed that the said confedential relation of physician and patient existed; hence, the physician was disqualified to repeat the communication. The appellant does not assign as error the refusal of the trial court to hear such preliminary evidence, but assigns as error the order sustaining the objection made that the answer called for was privileged because the witness was then treating plaintiff and plaintiff's wife as their physician. The ruling was strictly correct in the circumstances then before the trial court. We will not express any opinion as to the result had the appellant predicated error on the refusal of the court to try the preliminary question whether the relation of physician and patient existed as a fact at the time the supposed communication was made.

The common-law remedy of the servant against the master to recover damages for personal injuries sustained depends wholly upon the failure of the master in performing a duty he owes to his servant; that is, upon the master's negligence.

As clearly intimated by this court in Inspiration Consolidated Copper Co v. Mendez, 19 Ariz. 151, 166 P. 278, 1183, the employers' liability law is designed to give a right of action to the employee injured by accident occuring from risks and hazards inherent in the occupation and without regard to the negligence on the part of the employer. Such is the clear import of the said employers' liability law. Whether the employee's negligence becomes an element in actions based upon such statute depends upon whether the defendant injects into the cause such questions by means of setting up negligence on the part of the plaintiff as contributing to plaintiff's injuries as a partial defense, or the negligence of the employee as the sole proximate, efficient cause of the injury.

In all other cases the question as to whether the defendant is guilty of negligence which proximately caused the accident and resulting injuries to the plaintiff is wholly beyond the questions involved and immaterial to the inquiry. The cause of the action and the right of recovery granted by chapter 6, title 14, employers' liability law, exists without regard to negligence on the part of the defendant employer. If the injured workman relies for recovery upon the negligence of the employer as a cause for action, he must pursue the common-law remedy, as he is given no remedy to recover for negligence by the employers' liability law. That statute takes no cognizance of negligence as an element in the right of action given, and the presence in or absence of negligence from the accident relied upon for recovery under the statute adds nothing to or takes nothing from the rights of the parties, except as above noted.

Consequently a complaint setting forth facts sufficient to constitute a cause of action given by the employers' liability law which also sets forth facts constituting negligence, is open to attack by motion to strike that portion of the complaint setting up negligence, as immaterial matter or, in the absence of such motion, to disregard such allegations...