Kilpatrick v. Superior Court In and For Maricopa County, 9538

Citation105 Ariz. 413,466 P.2d 18
Decision Date27 February 1970
Docket NumberNo. 9538,9538
PartiesWendell C. KILPATRICK, Arthur J. Bowling, John Hempler, Harvey Lewellen, Vernon Groves, Tom Cobb, and Zane Porter, Petitioners, v. SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable Morris Rozar; Roy Miller, as surviving father of Carolyn J. Miller, deceased, on behalf of himself and his wife, Annie M. Miller, surviving mother of Carolyn J. Miller, deceased, and Antonia Almanza, as surviving spouse of Cirilo Almanza, deceased, Respondents.
CourtSupreme Court of Arizona

Jennings, Strouss & Salmon, by Rex Lee, Phoenix, for petitioners.

Moore, Romley, Kaplan, Robbins & Green, by Craig Kepner, Phoenix, for respondents.

Carson, Messinger, Elliott, Laughlin & Ragan, Lee R. Perry, and Browder, Gillenwater & Daughton, Phoenix, amici curiae.

STRUCKMEYER, Vice Chief Justice.

Petitioners applied to this Court for a writ of certiorari to review the action of the court below in denying their motion for summary judgment. We granted the writ to determine whether under the Constitution and the Workmen's Compensation Law of Arizona an action may be maintained by an employee for damages against a fellow employee predicated on negligence arising out of and in the course of employment.

A detailed recitation of the facts is unnecessary, it being sufficient to say that respondents Roy Miller and Annie M. Miller are the surviving father and mother of Carolyn J. Miller, deceased, and that Antonia Almanza is the surviving spouse of Cirilo Almanza, deceased. They brought an action against petitioners for damages, alleging that petitioners' negligence caused the death of Carolyn J. Miller and Cirilo Almanza. Both decedents were covered by Workmen's Compensation at the time they incurred the injuries which caused their deaths.

Petitioners moved for summary judgment, asserting that A.R.S. § 23--1023 of the Workmen's Compensation Act of Arizona protects employees against common-law damage actions brought by their fellow employees. They recognize that inherent in the problem is the question whether under the Arizona Constitution the Legislature may wholly forbid actions of negligence by employees against fellow employees.

It should immediately be stated that the Constitution is not a grant of power, but a limitation on the exercise thereof. Hart v. Bayless Investment and Trading Company, 86 Ariz. 379, 346 P.2d 1101; Clark v. Boyce, 20 Ariz. 544, 185 P. 136; State ex rel. Davis v. Osborne, 14 Ariz. 185, 125 P. 884. So, while generally it may be said that the State Legislature may exercise all those powers inherent in the people which are not delegated to another branch of government, Home Accident Insurance Co. v. Industrial Commis sion, 34 Ariz. 201, 269 P. 501, it cannot enact laws which will supersede constitutional provisions adopted by the people, Windes v. Frohmiller, 38 Ariz. 557, 3 P.2d 275. Where there is doubt in the legislative language, it is the court's duty to reconcile the language with the constitutional provision, Roberts v. Spray, 71 Ariz. 60, 223 P.2d 808, and construe the statute in such a manner that it will be constitutional if possible, Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136.

Article 18 of the Arizona Constitution entitled 'Labor' contains certain prohibitions, mandates and abjurations, ten in number, addressed to all branches of the government, which at the time of statehood in 1912 1 were believed necessary to protect the rights of laborers and the working class from judicial and legislative attrition. Justice McAlister, concurring in Industrial Commission of Arizona v. Crisman, noted the benevolent purposes of Article 18:

'Up to the end of territorial government in Arizona, a recovery for personal injury resulting in death was limited to $5,000, and the cause of action therefor was subject to all the defenses of the fellow-servant rule, assumed risk and contributory negligence, but with the adoption of the constitution, which removed the limitation of recovery, abrogated forever the fellow-servant doctrine, made assumed risk and contributory negligence questions of fact for the jury to decide, and provided for the enactment of an Employers' Liability Law, as well as one for Workmen's Compulsory Compensation, 'a different and more advanced, as well as humane public policy' was inaugurated, one which made it possible to enforce in court a claim for personal injury or death without the necessity of overcoming practically insurmountable defenses.' 22 Ariz. 579, 595, 199 P. 390 (1921).

There can be no doubt that the prohibitions, mandates and abjurations found in the various sections of Article 18 were designed to protect the rights of the laboring class from the evils which over the preceding century had eroded rights believed necessary to do justice between workmen and their employers.

Section 8 of Article 18 directs the Legislature to establish a Workmen's Compensation Law in Arizona. Its meaning is not obscure, yielding readily to critical scrutiny. As drafted on December 8, 1910, at the Constitutional Convention of the Territory of Arizona and as later adopted by the people, it read:

'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.'

On September 29, 1925 it was amended to, among other things, broaden the classes or workmen covered, but the substance was not significantly changed insofar as relates to the problem here. 2

Paragraph one of Section 8, as quoted and as amended, first, is a direction to the Legislature to enact a Workmen's Compensation Law by which injured employees are to be given a remedy, other than by suit for damages, for injuries incurred in the course of their employment; and, second, by the proviso, confers upon a workman the power to elect which remedy he chooses to exercise--whether to take the compensation as provided by the Legislature under the mandate of the Constitution or retain the right to sue the employer 'as provided by this Constitution'.

Of Section 8, this Court said on March 17, 1914, two years after statehood:

'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 employe injured in the circumstances provided by law. It is optional with the injured employe as to whether he will accept the compensation. The employe § right to exercise this 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 workman takes compensation, it does not require him to give up any rights he may have had to sue the actual wrongdoer other than his employer. 3 This is so simply because the proviso unequivocally says so: 4

'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.'

It can hardly have been by chance that this election was directed solely to the right to sue the 'employer'. Were it intended otherwise, language would have been used which would also have embraced the fellow employee, the actual wrongdoer. 5 Moreover, the proviso uses the words 'said employer'. This can only refer to the 'employer' as previously used in the mandate: '* * * compulsory compensation shall be required to be paid to any such workman by his employer * * *.' Obviously the compensation contemplated was not intended to be paid by the employer's employees.

Nor does the amendment of September 29, 1925 empower the legislature to abrogate common law rights of action. The amendment only serves to broaden the coverage afforded by the compensation laws, requires the employee to elect, prior to injury, which right he selects against his employer, and fixes the amount which the workman receives in settlement of his claim. Again, this is so simply because it says so! 6

It should also be noticed that the proviso speaks of the right to sue the employer 'as provided by this Constitution.' This is an obvious reference to Section 6 of Article 18 because it is this section which preserves the right of a workman to sue from legislative abrogation and judicial intermeddling. Hence, Section 8 must be considered in the light of Section 6 of Article 18. But even without the direct reference in Section 8 to other constitutional provisions we would be compelled to construe the two sections together for constitutions must be construed as a whole and their various parts must be read together. Corporation Commission of Arizona v. Pacific Greyhound Lines, 54 Ariz. 159, 94 P.2d 443.

Section 6 provides:

'The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.'

Of Section 6, this Court in 1926, speaking through the Honorable Alfred C....

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