Haralson v. Rhea

• Citation: 259 P.2d 246,76 Ariz. 74
• Decision Date: 13 July 1953
• Docket Number: No. 5690,5690
• Parties: HARALSON et ux. v. RHEA et ux.
• Court: Supreme Court of Arizona

Page 246

259 P.2d 246

76 Ariz. 74

HARALSON et ux. v. RHEA et ux.

No. 5690.

Supreme Court of Arizona.

July 13, 1953.

Claude E. Spriggs, of Phoenix, for appellants.

Anderson & Smith, of Safford, for appellees.

UDALL, Justice.

This is an appeal from a judgment obtained by plaintiffs-appellees, Edward L. Rhea, et ux. against J. A. Haralson, et ux., defendants-appellants, on two separate causes of action. The parties are before us in the reverse order of their appearance in the trial court, but for convenience reference will be made to them herein as they there appeared, namely as plaintiff and defendant. (The names of the respective wives were inserted merely to meet statutory requirements.)

The basis for the suit is a written agreement between the parties for the sale of real estate which was admittedly drafted by a layman. It contains a proviso that a part of the purchase price thereof is to be paid by labor to be performed by the plaintiff for defendant at an agreed salary of ten dollars per day. The case was tried to the court sitting without a jury.

First Cause of Action

This is brought under the Employers' Liability Law, Ch. 56, Art. 8, A.C.A. 1939, which covers employment of manual and mechanical labor in hazardous occupations.

The facts relied upon for recovery under this cause of action, stated in a light most favorable to a sustaining of the judgment, are that: (a) plaintiff was employed by defendant to aid in the construction of a home upon the premises which plaintiff was purchasing from defendant; (b) the operation of a power saw, owned and furnished by defendant, was a part of plaintiff's duties; (c) said power saw was defective in that there was no guard or plate thereon protecting the operator; (d) defective wiring caused an intermittent flow of electric power with which to operate the saw, thereby creating an additional hazard; (e) as a result of using this defective equipment, the plaintiff was, on May 10, 1950, seriously injured when his right hand came in contact with the saw; (f) plaintiff suffered the loss of two fingers and the partial loss of use of the remaining fingers on said hand, which the doctor testified constituted a 75% disability in the use of this hand.

The trial court, upon conflicting evidence as to certain features, held that; (1) defendant employer was subject to the provisions of the Workmen's Compensation Law, Ch. 56, Art. 9, A.C.A. 1939, in that he had three or more workmen in his employ; (2) the defendant had failed to comply with the law in that he had not obtained, at the time of the accident, a policy of insurance covering his employees; (3) the relation of employer-employee existed between the parties hereto, hence the plaintiff was not, as claimed by defendant, an independent contractor. From an examination of the transcript we hold that these findings are amply sustained by the evidence.

Where an employer fails to provide his employees with insurance as is required by the Workmen's Compensation Law, supra, he is penalized under the provisions of Section 56-947, A.C.A. 1939, in that the injured employee then has two remedies, viz.: (1) procure an award from the Industrial Commission which may be docketed as a judgment with the clerk of the superior court; (2) sue the employer in the courts '* * * in an action under any other law of the state * * *.' This latter provision was interpreted, in the excellent opinion written by Justice Lockwood in the case of Robles v. Preciado, 52 Ariz. 113, 79 P.2d 504, to mean (a) the common-law action of negligence, or (b) the Employers' Liability Law. See also, Hammels v. Britten, 53 Ariz. 112, 85 P.2d 992.

Because of the hazardous nature of the work he was performing at the time of his injury, the plaintiff in the instant case elected to sue under the Employers' Liability Law, no doubt relying upon subdivision (6) of Section 56-803, which reads in part:

'All work of construction, * * * where wires, * * * or other apparatus or machinery are in use charged with electrical current'.

See, Schneider, Workmen's Compensation Text, Vol. 2, Perm.Ed., Section 544, entitled 'Power Machinery'.

Section 56-947, supra, further provides that where suit is brought,

'* * * the defendant shall not avail himself of the defenses of assumption of risk, or of contributory negligence, and in all such actions proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury * * *',

from which it appears the only defense left to defendant is to show that the injury was caused by the sole negligence of the employee. While the trial court found that the plaintiff was guilty of contributory negligence of the most gross kind it did not find that the plaintiff's negligence was the sole proximate cause of the injury, for it also held that the defendant had failed to carry the burden of showing that he was free from negligence in that the power saw which was made available by him for plaintiff's use was without the safety features of a guard and plate.

The court entered judgment for the plaintiff on this cause of action for $3,008, of which amount $508 represented expenses incurred for hospitalization and medical care. It appears from the record that damages in a greater amount would have been entered had it not been for contributory negligence on the part of plaintiff. The court invoked the provisions of Section 56-805, A.C.A. 1939, of the Employers' Liability Law, as a justification for diminishing the damages allowed. While Section 56-947, supra, of the Workmen's Compensation Act is silent as to the diminution...