Consolidated Arizona Smelting Co. v. Egich

• Decision Date: 03 May 1920
• Docket Number: Civil 1753
• Citation: 199 P. 132,22 Ariz. 543
• Parties: CONSOLIDATED ARIZONA SMELTING COMPANY, a Corporation, Appellant, v. JOHN EGICH, Appellee
• Court: Arizona Supreme Court

199 P. 132

22 Ariz. 543

CONSOLIDATED ARIZONA SMELTING COMPANY, a Corporation, Appellant, v. JOHN EGICH, Appellee

Civil No. 1753

Supreme Court of Arizona

May 3, 1920

Rehearing denied July 5, 1921.

APPEAL from a judgment of the Superior Court of the County of Yavapai. J. J. Sweeney, Judge. Reversed, with directions to grant new trial.

Messrs Anderson & Ellis (Mr. Robert McMurchie, of Counsel), for Appellant.

Mr Barnett E. Marks, for Appellee.

OPINION

ROSS, J.

This is an action for damages under the Employers' Liability Law (Civ. Code 1913, pars. 3152-3162). The facts as to how the accident happened causing the plaintiff's injury are not controverted. The plaintiff was working for defendant in its mine on the 900-foot level, and on February 3, 1918, while standing on what is designated in the pleadings and evidence as a grizzly, breaking rocks with a hammer, as he had been instructed to do, the head of the hammer flew off of the handle and struck his right foot, breaking a toe. The grizzly consisted of railroad rails, placed parallel to each other and about six inches apart. When the head of the hammer struck plaintiff's foot, the foot slipped between the rails, plaintiff lost his balance and fell, wrenching and twisting the muscles, ligaments, and bones of his foot and ankle.

The defendant raised the question of the sufficiency of these facts to constitute a cause of action under the Employers' Liability Law, by demurrer, and at the trial by a motion for a directed verdict. The demurrer was overruled, and the motion for a directed verdict was refused. The plaintiff had judgment for $2,500, and the appeal is from the judgment and the order overruling the motion for a new trial.

The orders overruling demurrer and refusing to grant motion for a directed verdict are assigned as error. We state the defendant's proposition of law in its own language:

"They [the facts] show that the accident was proximately caused by the head of the hammer flying off and striking plaintiff's right foot. This is not an inherent risk of a hazardous occupation which is unavoidable by a workman. It is not an accident arising out of and in the course of his employment, and due to a condition or conditions of such employment, as is contemplated by our Employers' Liability Law, but is the ordinary risk, the ordinary happening which might take place on the public highway, if he were breaking stones there."

In other words, the proposition amounts to this, as we understand it: The proximate cause of the accident being the negligence of defendant in furnishing plaintiff with a defective hammer to do his work, the injury arose from an ordinary risk, and not an inherent or hazardous risk, it being the contention that the Employers' Liability Law covers only the latter kind of risk; that is, risks that are inherent in the occupation.

To sustain its position, the defendant refers us to many cases decided by this court, in which the elements going to constitute the cause of action under the liability law have been discussed, and points out therein many expressions tending to uphold its contention. The particular expression upon which the defendant relies is that we have said in those cases that "the risks and hazards must be inherent in the occupation" before the employee may recover.

That the defendant's position may be well understood, we again quote from its brief:

"Before an injured workman can recover under the Employers' Liability Act, it must affirmatively appear that the accident causing the injury was due to an inherent risk or hazard of the occupation, and was unavoidable by the workman. This excludes accidents due to the employer's negligence."

The learned counsel for defendant rely almost wholly upon what this court has said in other cases to vindicate and sustain their proposition. For instance, in Arizona Eastern R.R. Co. v. Mathews, infra, this language is used:

"It is evident that the accident must arise out of and also be inherent in the occupation itself; the condition or conditions that produce the accident must inhere in the occupation. . . . It would seem that, before an employee may recover for injury under this act, it must have occurred while he was at work in his occupation, and it must have been occasioned by a risk or danger inherent in the occupation."

In Calumet & Arizona Min. Co. v. Chambers, infra, it is said:

"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. . . . Consequently, the facts pleaded are sufficient to set forth conditions of plaintiff's employment which require 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."

In Arizona Copper Co. v. Burciaga, infra, it is said:

"The wrong giving the right of action is attributable, not to any fault, wrong, or negligence of the employer, but to the risks and hazards which are inherent in such occupation, and which are unavoidable by the workmen therein. . . . 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 occurring from risks and hazards inherent in the occupation and without regard to the negligence on the part of the employer."

In Inspiration Consolidated Copper Co. v. Mendez, infra, it is said:

"The appellant contends, and I think his contention is correct, that the liability statute must be construed as one creating a liability for accidents resulting in injuries to the workmen engaged in hazardous occupations due to the risks and hazards inherent in such occupations without regard to the negligence of the employer, as such negligence is understood in the common law of liability; in other words, such statute creates a liability for accidents arising from the risks and hazards inherent in the occupation without regard to the negligence or fault of the employer."

In Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 P. 1101, 1185, it is said:

"The matters left open for inquiry were the amount of the damages the plaintiff was entitled to recover as measured by the allegations of the complaint and the evidence, and whether the accident was due to a condition or conditions of the employment, and such as is unavoidable."

Counsel also contend that the Supreme Court of the United States, in Arizona Copper Co. v. Hammer, 250 U.S. 400, 63 L.Ed. 1058, 39 S.Ct. 553, in construing the Arizona Liability Law, and the decisions of this court, also had in mind that the liability created was one arising out of accidents inherent in the occupation, and quotes many expressions from that high court such as: "Employment designated as inherently hazardous and dangerous to workmen"; "to hazards inherent in the employment"; "risks inherent in the occupation"; and "due to such inherent conditions."

As we go along, we think we shall be able to show that the liability arises when the injury or death is caused by an accident due to a condition or conditions of the occupation and that the accident need not necessarily happen by reason of an inherent risk or danger, but that it may arise from the manner in which the business is carried on. Section 7, article 18, of the Constitution is the fountainhead and source of the Employers Liability Law. It creates and defines a new liability of the employer to the employee. It names and points out the circumstances and conditions under which the liability may arise. It defines the rights that may accrue to an injured or killed employee, and directs the legislature to enact a law providing a method of procedure for the enforcement of those rights. The mandate to the legislature contained in said section adds nothing to the rights therein created. If the Constitution had stopped with the bare declaration of the right, the duty of the legislature to enact laws for its enforcement would have been just as imperative. The provision was not self-executing, and, whether commanded to supplement it with proper legislation or not, the obligation to do so was obvious, if the intention as expressed in the Constitution was to be carried out. So the direction to the legislature was not to create a new or different right of action, or to add to or take from the one declared by the Constitution, but to formulate laws whereby the rights secured may be realized. According to the definition, the liability of the employer depends upon the concurrence of the three following circumstances: (1) The existence of the relation of employer and employee; (2) injury or death while in the service of the employer in a hazardous occupation in one of the industries of mining, smelting, manufacturing, railroad, or street railway transportation, or other proper industries; (3) the injury or death must have been caused by an accident due to a condition or conditions of the occupation, and not caused by the negligence of the employee killed or injured. If the relation of employer and employee exists, if the latter suffers injury or death in a named hazardous occupation caused by an accident due to a condition or conditions of the occupation, and not the negligence of the employee, all the constitutional facts are present, and constitute a right of action in favor of the employee against the employer. The legislature, in paragraph 3154, Civil Code (part of the Employers' Liability Law), has phrased the definition of the right thereby created in the language of the Constitution,...