Consolidated Arizona Smelting Co. v. Ujack
Decision Date | 17 March 1914 |
Docket Number | Civil 1331 |
Citation | 139 P. 465,15 Ariz. 382 |
Parties | CONSOLIDATED ARIZONA SMELTING COMPANY, a Corporation, Appellant, v. JOHN UJACK, Appellee |
Court | Arizona Supreme Court |
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.
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:
Workmen's compulsory compensation act:
Paragraph 3166, Ariz. Rev. Stats.
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: 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...
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Hayes v. Continental Ins. Co.
...has been jealously protected by this court's jurisprudence from the first days of statehood. See, e.g., Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 P. 465 (1914); Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658 (1926); State ex rel. Industrial Comm'n v. Pressley, 74......
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Inspiration Consolidated Copper Co. v. Mendez
... ... CEFERINO MENDEZ, Appellee Civil No. 1508 Supreme Court of Arizona July 2, 1917 ... Dissenting Opinion of Justice Ross Reported at 166 P. 1183 ... protect the safety of employees in all hazardous occupations, ... in mining, smelting, manufacturing, railroad or street ... railway transportation, or any other industry the ... Consolidated Arizona Smelting Co. v. Ujack, ... 15 Ariz. 382, 139 P. 465), and is personal to the employee ... The beneficiaries of the ... ...
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Arizona Copper Co v. Hammer Same v. Bray Ray Consol Copper Co v. Veazey Inspiration Consol Copper Co v. Mendez Superior Pittsburg Copper Co v. Tomich 20 21
...denies them equal protection because it confers upon the employe a free choice among several remedies. In Consolidated Arizona S. Co. v. Ujack, 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court of the state 'Under the laws of Arizona, an employe who is injured in the course of his emp......
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Kilpatrick v. Superior Court In and For Maricopa County
...option being a constitutional right, legislation is impotent to deprive him of it.' (Emphasis supplied.) Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, at 387, 139 P. 465. It is of importance to emphasize that the proviso speaks only of an election to sue the employer. If the wor......
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12.2.1.2 Employee's Right to Reject Coverage Prior to Injury
...Larson § 67.10. Before 1925 an injured worker could made such election after an injury. See Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 P. 465 (1914).[9]A copy of such a notice may be found in Appendix C.[10]A.R.S. § 23-906 (A) and (E) (Supp. 1991). See also Circle K Corp.......
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§ 1.1.8 THE WORKERS' COMPENSATION CONSTITUTIONAL AMENDMENT.
...submission to the attorney general, or to the courts. Leshy, supra note 52, at 316-17.[157] Consol. Ariz. Smelting Co. v. Ujack, 15 Ariz. 382, 139 P. 465 (1914). This final option had an ironic twist: a surviving dependent of a worker killed without having made an election had no remedy bec......