Inspiration Consolidated Copper Co. v. Mendez

• Decision Date: 02 July 1917
• Docket Number: Civil 1508
• Citation: 19 Ariz. 151,166 P. 278
• Parties: INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellant, v. CEFERINO MENDEZ, Appellee
• Court: Arizona Supreme Court

166 P. 278

19 Ariz. 151

INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellant, v. CEFERINO MENDEZ, Appellee

Civil No. 1508

Supreme Court of Arizona

July 2, 1917

Dissenting Opinion of Justice Ross Reported at 166 P. 1183.

APPEAL from a judgment of the Superior Court of the county of Gila.G. W. Shute, Judge.Affirmed.

STATEMENT OF FACTS BY THE COURT.

The appellee commenced this action to recover damages for alleged injuries received by him on June 28, 1914, while occupied in the performance of his underground duties in the course of his employment by the appellant in appellant's mines.The injury suffered was inflicted at the time he opened a valve to admit compressed fresh air into a compartment of the mine to the end that the working be cleared of foul air permitting the workmen there to proceed with their mining.When the said valve was opened by the appellee, the air escaping therefrom under heavy pressure struck appellee's face and cast dirt or other substances into his eyes, causing injuries thereto.Negligence is not asserted as a cause of the injuries, but plaintiff alleges that said accident was due to a condition or conditions of plaintiff's said occupation while an employee in the service of the defendant that said employment was a hazardous occupation; that said injury was not caused in whole or in part by the negligence of the plaintiff; and that this action is brought under the employer's liability law.Chapter 6,tit. 14, Revised Statutes of Arizona,Civil Code 1913.

The defendant in defense to the action asserts that chapter 6,title 14, of the Civil Code of Arizona of 1913, upon which the action is based, is void for the reason that the same attempts to create a liability without fault, and therefore would deprive this defendant as an employer of its property without due process of law, and would deny the equal protection of the laws, in violation of section 4 of article 8 of the state Constitution, and of section 1 of the Fourteenth Amendment to the Constitution of the United States; and for these reasons the complaint fails to state facts sufficient to constitute a cause of action.

The further defenses of negligence by the plaintiff as the sole cause of the injury, the contributory negligence of the plaintiff in that he failed to timely and properly treat the injuries inflicted upon his eyes, which delay enhanced the damages thereto, the assumption of the risk by plaintiff, the defendant asserting that the injury resulted from an obvious and ordinary risk of the occupation, and, the defendant alleging that the plaintiff's remedy and defendant's liability, if any, are fixed by chapter 7 of title 14 of the compensation law, and not fixed by chapter 6 of title 14 upon which the action is based.The court disallowed all of defendant's objections to proceeding under the employers' liability law (chapter 6,title 14), based on constitutional grounds, and a trial of the cause resulted in a verdict for plaintiff in the sum of $5,500, less the amount, $262.47, concededly paid to plaintiff by the defendant.The court deducted said $262.47, the said amount paid to plaintiff from the said amount found as damages, without objection, and rendered judgment for plaintiff for the sum of $5,237.53 and costs.From such judgment and from an order refusing a new trial, defendant appeals.

Mr. Edward W. Rice, for Appellant.

Mr. A. C. McKillop and Mr. Geo. F. Senner, for Appellee.

OPINION

CUNNINGHAM, J.

(After Stating the Facts as Above).The appellee moves the dismissal of this appeal upon the grounds that the appellant failed to take an appeal before filing an appeal bond.

The judgment in this case was ordered entered on the twenty-ninth day of March, 1915.The motion for a new trial was denied April 12, 1915.The appeal bond including a provision for superseding the execution of the judgment was filed on August 30, 1915.On September 27, 1915, the appellant gave its notice of appeal from the said order refusing a new trial and from said judgment.The appellee contends that because the bond was filed before the notice of appeal was given, that at the time the bond was filed no appeal had been taken, and that the bond was therefore prematurely filed, and such filing of the bond does not serve any purpose of appeal.

An appeal may be taken from a final judgment of the superior court in a civil action at any time within six months after the rendition of the judgment.Paragraph 1233,Civil Code of Arizona 1913.The appeal is taken by giving a notice of appeal, either in open court or in writing substantially in the form prescribed by paragraph 1235 of the Civil Code of 1913, and the appeal is perfected when the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed within the time in which the appeal may be taken, that is, within six months after the rendition of the final judgment.Paragraph 1236,Civil Code 1913.The appeal is perfected on the date when both the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed, or the date upon which the notice of appeal is given in cases in which no appeal bond is required.Paragraph 1237,Civil Code 1913.

The performance of both of these acts within six months after the rendition of the judgment serves to effect a removal of the cause from the superior courts to the Supreme Court.The matter of the removal of the cause from the lower to the higher court for review is the important purpose of the appeal.The order in which these necessary acts are to be performed so that the cause is effectually removed from the lower court to the higher, and by which the lower court is divested of jurisdiction over the cause, and the appellate court acquires jurisdiction over the cause, is not made important by the statute.The statute leaves the matter of the order of performing each of these necessary acts of removal to the pleasure of the party desiring to appeal, and only limits the time within which he must perform both acts necessary to the accomplishment of the appeal to the period of six months from the date of the rendition of the judgment.Wores v. Preston,4 Ariz. 92, 77 P. 617, I think correctly decided the identical question here presented 24 years ago, and that decision has remained the law to this day.

The appellee contends that the giving of the notice is the essential act of taking an appeal, and that the filing of a bond at a time prior to the time of giving of the notice of appeal is not equivalent in law to the filing of such bond after the appeal is taken, and that the appeal must be first taken, and thereafter the bond must be filed in order to effect an appeal.It is quite clear from the statutes that the giving of the notice of appeal is an act essential to taking an appeal.It is also quite clear from the statutes that the furnishing of an appeal bond, or affidavit in lieu of such bond, as the case may be, is essential to perfecting an appeal.The purpose of the statute requiring an appeal bond to be given is to protect the rights of the appellee pending the appeal.The parties may by written stipulation waive the giving of an appeal bond, and such waiver of the bond does not affect the appeal.Paragraph 1255,Civil Code 1913.

The appellee had the right to object to the appeal bond on the grounds of its insufficiency for the reasons of any error, defect, or insufficiency at any time within ten days after the filing of such bond, by giving notice of the errors, defects, and insufficiencies in such bond of which he complains, and, failing to give such notice, all errors and defects or insufficiencies in any appeal bond are deemed waived.Paragraph 1253,Civil Code 1913.Hence the time of filing the appeal bond is important as fixing the time within which the appellee may object to errors, defects, and insufficiencies therein.

Until the notice of appeal is given, the appellee's rights in the judgment are unaffected, even though an appeal bond has been deposited by the appellant with the files in the cause.If appellee has knowledge that such bond has been deposited with the papers of the cause, he is not required to object to the sufficiency of such bond until he is notified as required by law that the adverse party has taken an appeal.When the notice of appeal is given and the appeal bond is present in the cause, the adverse party then may object to the sufficiency of the appeal bond within the time provided; else he waives defects, and the appeal is perfected, and the jurisdiction over the cause is transferred.The presence of the appeal bond in the files of the court at the time the notice of the appeal is given is a sufficient filing of the appeal bond to require the adverse party, the appellee, to examine it for errors, defects, and insufficiencies, and if any are found, to then raise objections thereto.If no objections on the grounds of defects, errors, or insufficiencies are raised by the appellee within ten days thereafter the bond is deemed effective as an appeal bond to accomplish a removal of the cause from the lower to the higher court.The obligors on the bond may not be heard to question their liability, and the appellee is furnished the protection pending appeal which the statutes are intended to give to him.

The appellee contends that in this case the bond filed is in form a supersedeas bond, and if an adverse party be permitted to file such a bond, and thereby suspend the execution of a judgment before the appellee has notice of the taking of an appeal, the appellee suffers a wrong.This is assuming that a supersedeas bond filed before an appeal is taken has the effect of suspending a judgment from the time of the filing of the bond.Such is...