Consolidated Arizona Smelting Co. v. Ujack

• Citation: 139 P. 465,15 Ariz. 382
• Decision Date: 17 March 1914
• Docket Number: Civil 1331
• Parties: CONSOLIDATED ARIZONA SMELTING COMPANY, a Corporation, Appellant, v. JOHN UJACK, Appellee
• Court: Supreme Court of Arizona

139 P. 465

15 Ariz. 382

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

Civil No. 1331

Supreme Court of Arizona

March 17, 1914

APPEAL from a judgment of the Superior Court of the County of Yavapai. Frank O. Smith, Judge. Affirmed.

The facts are stated in the opinion.

Messrs Anderson & Lamson, for Appellant.

Mr. E S. Clark and Mr. J. Ralph Tascher, for Appellee.

OPINION

ROSS, J.

This action involves the right of the appellee, the employee, to recover damages for personal injuries alleged to have been occasioned by the negligence of the appellant, the employer.

Among the defenses interposed, and it is the only one relied upon here, is that the rights of appellee are found in and measured by the compulsory compensation law, as contained in chapter 14, Laws of Arizona, First Special Session of 1912. It is conceded that appellee at the time of his injury was engaged in a hazardous occupation such as named in the compulsory compensation law, and in the employers' liability law (chapter 89, First Session Legislature of Arizona of 1912).

Under the laws of Arizona, an employee who is injured in the course of his employment has open to him three avenues of redress, any one of which he may pursue according to the facts of his case. They are: (1) The common-law liability relieved of the fellow-servant defense and in which the defenses of contributory negligence and assumption of risk are questions to be left to the jury. Const., secs. 4, 5, art. 18. (2) Employers' liability law, which applies to hazardous occupations where the injury or death is not caused by his own negligence. Const., sec. 7, art. 18. (3) The compulsory compensation law, applicable to especially dangerous occupations, by which he may recover compensation without fault upon the part of the employer. Const., sec. 8, art. 18.

Prior to the adoption of the Constitution, an employee who had suffered an injury, or his personal representative, in case of death, had but one remedy -- the common-law liability with all of its defenses of fellow-servant, contributory negligence, and assumed risk. The Constitution declared for this state a different and more advanced as well as humane public policy, one in consonance with the present day enlightened thought and conscience by providing for the employers' liability and compulsory compensation in all hazardous or especially dangerous employments.

The appellee contends that he was entitled, under the facts of the case, to maintain his suit for personal injury under the employers' liability law, while the appellant insists that his exclusive remedy was to be found in the compulsory compensation law. The controverted question may be disposed of by a correct answer to this question: Does the compulsory compensation act, when not disaffirmed prior to injury, limit the remedy of the injured employee to the compensation provided in that act, or may he after the injury elect between his remedy under the act and the other remedies of the common-law liability or employers' liability? The appellee was in the employment of appellant at the time the workmen's compensation law took effect, and had been in such employment for more than ten days thereafter when he was injured. Neither the employer nor the employee had taken any affirmative action in recognition of the law, either to approve or repudiate it.

The section of the Constitution and the sections of the workmen's compulsory compensation act bearing upon the question are as follows:

"Sec. 8. The legislature shall enact a workmen's compulsory compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employee, or employees, to exercise due care, or to comply with any law affecting such employment; provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution." Const., art. 18.

Workmen's compulsory compensation act:

"Sec. 4. In case such employee or his personal representative shall refuse to settle for such compensation (as provided in section 8 of article 18 of the state Constitution) and chooses to retain the right to sue said employer (as provided in any law provided for in section 7, article 18 of the state Constitution) he may so refuse to settle and may retain said right." Paragraph 3166, Ariz. Rev. Stats.

"Sec. 7. When, in the course of work in any of the employments described in section 3 above, personal injury by accident arising out of and in the course of such labor, service, or employment, is caused to or suffered by any workman engaged therein, by any risk or failure specified in section 2 hereof, then such employer shall be liable to and must make and pay compensation to the workman injured, and his personal representative, when death ensues, for the benefit of the estate of the deceased, for such injury at the rates and in the manner hereinafter set out in this act; provided, . . . and provided, further, that the employer shall not be liable under this act in case the employee refuses to settle for such compensation and retains his right to sue as provided in sec. 4 of this act." Paragraph 3169, supra.

"Sec. 14. This act shall take effect on the 1st day of September, 1912; and ten days from and thereafter, it shall be taken and held in law that all workmen then in the employ, and all workmen afterward employed by an employer at manual and mechanical labor of the kids defined in section 3 of this act, are employed and working under this act, and the employer and workman shall alike be bound by and shall have each and every benefit and right given in this act the same as if a mutual contract to that effect were entered into between the employer and the workman at any time before the happening of the accident. It shall be lawful, however, for the employer or workman to disaffirm an employment under the provisions of this act by written contract between them, or by written notice by one to, and served upon, the other to that effect before the day of the accident; provided, such written contract does not provide for less compensation than as provided in this act. And in the absence of such written contract or written notice, served as above provided, it shall be taken and held that the employment and service is under this act; and the same shall be the sole measure of their respective rights and liabilities when and as provided in this act; provided, if, after the accident, either the employer or the workman shall refuse to make or accept compensation under this act or to proceed under or rely upon the provisions hereof for relief, then the other may pursue his remedy or make his defense under other existing statutes, the state Constitution, or the common law, except as herein provided, as his rights may at the time exist. Any suit brought by the workman for a recovery shall be held as an election to pursue such remedy exclusively." Paragraph 3176, supra.

It will be granted, of course, that, when conflicts occur in the above quotations from the Constitution and the statutes, the latter must give way. If the Constitution makes the compensation obligatory on the employer and optional as to the employee, to be exercised after the injury, that is the end of it. The Constitution says: "The legislature shall enact a workman by his employer. . . . Provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution." This mandate to the legislature was carried out in the enacting of the workmen's compulsory compensation law, and, in doing so, there was created a new civil action heretofore unknown to our laws, available to the employee injured in the circumstances provided by law. It is optional with the injured employee as to whether he will accept the compensation. The employee's right to exercise this option being a constitutional right, legislation is impotent to deprive him of it. If the employee is never injured, he can make no claim for "such compensation," nor exercise his option. After a cause of action has accrued to the employee, he may choose to accept the compensation allowed under this act, and the legislature is competent to prescribe the steps he shall take in its enforcement, but it cannot require him to elect, in advance of any injury, or the accrual of any right, which remedy he will pursue for redress.

Therefore any expressions in the workmen's compulsory compensation act that seemingly require that the employee shall elect, in advance of injury, his remedy for redress should be read and construed in view of the constitutional provision permitting him to exercise his option, after the injury, either to claim compensation or sue for damages. While section 14 of the workmen's compulsory compensation act, supra, and the first proviso thereof, when taken alone, would seem to require the employee to elect his remedy for redress of injury in advance, or rather attempts to fix his status as under that act, in the absence of a disaffirmance of its provisions by written contract or by written notice before the accident, that construction, being...