Calumet & Arizona Mining Co. v. Chambers

• Decision Date: 18 December 1918
• Docket Number: Civil 1557
• Citation: 20 Ariz. 54,176 P. 839
• Parties: CALUMET & ARIZONA MINING COMPANY, a Corporation, Appellant, v. THOMAS F. CHAMBERS, Appellee
• Court: Arizona Supreme Court

176 P. 839

20 Ariz. 54

CALUMET & ARIZONA MINING COMPANY, a Corporation, Appellant, v. THOMAS F. CHAMBERS, Appellee

Civil No. 1557

Supreme Court of Arizona

December 18, 1918

APPEAL from a judgment of the Superior Court of the county of Cochise. A. G. McAlister, Judge. Affirmed.

Mr David Benshimol, for Appellant.

Mr. R N. French, Mr. Bruce Stephenson and Mr. C. V. Manatt, for Appellee.

OPINION

CUNNINGHAM, C. J.

The plaintiff expressly alleges in his complaint "that this action is brought under the provisions of title 14, chapter 6, Civil Code of Arizona of 1913." Consequently, he is precluded by such election of remedy from a recovery other than permissible under said employers' liability law. The sufficiency of his complaint to state facts constituting a cause of action given by such statute must be tested with reference to the requirements of said statute, and the proof must support the complaint both as to the facts authorizing a recovery and as to the amount of damages recovered.

The defendant demurred to the complaint on the grounds of insufficiency of facts stated to constitute a cause of action; on the special grounds that the facts stated do not constitute an allegation that sets forth a condition or conditions of the employment of the plaintiff, nor show that plaintiff's injuries received were due to a condition or conditions of the plaintiff's employment because the complaint sets forth and unites therein two separate and distinct causes of action, that is, a cause of action based upon the employers' liability law, and also a cause of action based upon negligence under the common law; that the employers' liability law is invalid because it attempts to deprive the defendant of its property without due process of law, and denies it the equal protection of the law by subjecting it to unlimited liability for damages for personal injuries suffered by its employees without fault, or any negligence on its part; and because said statute attempts to deprive the defendant of the right to wholly defeat an action based upon said statute by interposing a defense of contributory negligence.

The objections to the validity of the statute based upon constitutional grounds have been considered recently by this court in Inspiration Consolidated Copper Co. v Mendez, 19 Ariz. 151, 166 P. 278, and in Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 P. 1101, wherein such questions were decided adversely to this appellant's contention. We then held that said employers' liability law is a valid enactment and is not in conflict with the constitutional provisions here invoked. The appellant in its brief expressly refers to the arguments made in this court in the Tomich case, then pending, and relies upon such argument "and citations referred to in the brief of the defendant appellant in the case of Tomich v. Superior & Pittsburg Copper Company." Since this brief was filed, said Tomich case has been decided as indicated above.

The plaintiff, in order to recover under the employers' liability law, is required to allege in his complaint and sustain by evidence that he was employed by the defendant in an occupation declared hazardous, and while engaged in the performance of the duties required of him was injured, and the injury was caused by an accident due to a condition or conditions of such employment, and was not caused by the negligence of plaintiff. The statute (paragraph 3155) declares that " By reason of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations, and which are unavoidable by the workmen [engaged] therein." Hence (paragraph 3158) "When in the course of work in any of the employments or occupations enumerated in, . . . personal injuries or death by any accident arising out of and in the course of such labor, service and occupation, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employee shall not have been caused by the negligence of the employee killed or injured, then the employer of such employee shall be liable in damages. . . ."

The complaint shows that the defendant was engaged in operating a smelter and machinery incident thereto; that at the time of the accident, January 15, 1915, the plaintiff was in the service of the defendant engaged in performing his duties about the said smelter, including the duty ". . . in the event of an emergency or accident to assist and aid in restoring conditions and putting things in working order."

The surroundings in which plaintiff was performing his duties are described in the complaint with sufficient fullness to show that the risks and hazards assumed by the employee are great and inherent in the occupation, and unavoidable by the workmen. Any deficiency in this respect in the complaint is cured by the answer in which is described in detail all of the appliances used and the manner of their use, expressly admitting in this connection: "That the occupation of the plaintiff, as admitted herein, was a hazardous one and required on the part of the employees great care."

Consequently, the facts pleaded are sufficient to set forth conditions of plaintiff's employment which required him to assume risks and hazards inherent in the occupation he was then engaged in, which he was not able to avoid, and continue in the occupation. The accident is described in the complaint briefly as follows:

That on the fifteenth day of January, 1915, while plaintiff was engaged in assisting other coemployees to adjust a car to the track from which it had been thrown in some unexplained manner, not important, ". . . and which plaintiff was assisting and aiding in putting the said car back on the tracks," the car was made to appear to plaintiff as in the act of turning over on him, and plaintiff in order to escape from injury by the overturning car jumped, "and as he jumped he caught his foot on an iron bar and fell into an open slag spout, and by reason thereof plaintiff received serious injury to his right leg. The said injury was caused by an accident, to wit, the carelessness and negligence of the defendant, its agents, servants, and employees, in causing the said fettling cars to be thrown from, jump, or leave the track, and the cry of the said coemployee of the plaintiff and servant and agent of the defendant that the car was turning over as aforesaid, and the carelessness and negligence of the defendant, its agents, servants and employees, in leaving open the said spout as aforesaid, and the fall of the plaintiff into the said slag spout as aforesaid, which in the employment of the defendant and in the performance of his duties as such employee of the defendant in the said hazardous occupation aforesaid and the injury received by the plaintiff was not caused by the negligence or fault of plaintiff."

This language, stripped of its many qualifying adjectives, sets forth the fact that the plaintiff, while assisting other employees to replace a fettle car on a track, believed the car was overturning and falling on him, and, in...