Morgan v. Hays

• Decision Date: 12 April 1967
• Docket Number: No. 8653,8653
• Citation: 102 Ariz. 150,426 P.2d 647
• Parties: Robert D. MORGAN, Petitioner, v. Jack D. H. HAYS, Judge, Superior Court of the State of Arizona, in and for the County of Maricopa, and said Superior Court, Respondents, and Metro-Goldwyn-Mayer, Inc., Real Party in Interest.
• Court: Arizona Supreme Court

Page 647

426 P.2d 647

102 Ariz. 150

Robert D. MORGAN, Petitioner, v. Jack D. H. HAYS, Judge, Superior Court of the State of Arizona, in and for the County of Maricopa, and said Superior Court, Respondents and Metro-Goldwyn-Mayer, Inc., Real Party in Interest.

No. 8653.

Supreme Court of Arizona, In Banc.

April 12, 1967.

Rehearing Denied May 9, 1967.

Snell & Wilmer, by Mark Wilmer, Phoenix, for petitioner.

Richard J. Daniels, Jennings, Strouss, Salmon & Trask, by Rex H. Moore, by Rex E. Lee, Phoenix, for respondents and real party in interest.

McFARLAND, Justice:

Robert D. Morgan, hereinafter referred to as petitioner, filed a petition with this court seeking issuance of a writ of certiorari to test the propriety of the granting of a motion to dismiss by Jack D. H. Hays, Judge of the Superior Court, Maricopa County, hereinafter referred to as respondent, in an action brought by petitioner against Metro-Goldwyn-Mayer, Inc., a Delaware corporation, real party in interest, hereinafter refered to as MGM.

Petitioner filed a complaint in Superior Court, Maricopa County, Arizona, on December 13, 1962, against MGM in which he alleged that on April 9, 1962, while in the employ of MGM in the capacity of a 'stunt man' in the production of a motion picture 'How the West Was Won,' being filmed in part in Maricopa County, petitioner was injured through negligence of MGM, and suffered severe injuries as a result of said negligence. On April 30, 1964, MGM, through its attorneys, filed a motion to dismiss under Rule 12, Arizona Rules of Civil Procedure, 16 A.R.S., claiming that the court lacked jurisdiction over the subject matter of the claim for relief, and sought an order setting this motion for preliminary hearing to the court. Respondent ordered the preliminary hearing on the motion to dismiss by minute entry of May 19, 1964. Petitioner filed with this court a petition for writ of certiorari on June, 4, 1964, seeking relief from the order of respondent granting a preliminary hearing on MGM's motion to dismiss for lack of jurisdiction over the subject matter, on the grounds that petitioner was entitled to a jury trial. We denied this petition by order of June 9, 1964.

After a hearing lasting four days, respondent took the motion under advisement, and advised counsel that he was declining to rule upon the jurisdictional questions in advance of trial, and that the jury trial on the issue of common law negligence and damages would proceed. MGM then filed a petition for a writ of mandamus with this court. We granted a peremptory writ on June 17, 1964, which commanded respondent:

'* * * forthwith to rule on the matter of jurisdiction of said court in the above-entitled matter before proceeding to trial.'

By order of June 17, 1964, respondent granted MGM's motion to dismiss for lack of jurisdiction, and in his findings of fact and conclusions of law respondent found that petitioner's exclusive remedy was vested either in the Industrial Accident Commission of the State of California, or The Industrial Commission of Arizona, and:

'By virtue of the foregoing conclusions, this Court does not have jurisdiction over the subject matter of this lawsuit and therefore the defendant's Motion to Dismiss should be granted and this cause should be dismissed and judgment should be entered in favor of the defendant.'

The judgment of dismissal for lack of jurisdiction was filed on January 5, 1965. Petitioner filed his notice of appeal on February 26, 1965, but the appeal was not perfected by filing within sixty days a bond for costs as required under Rule 73(b), Arizona Rules of Civil Procedure, as amended 1961.

Petitioner then filed a petition for writ of certiorari with the Court of Appeals of Arizona, Division one, which was denied.

The petition was then presented to this court, and we granted the writ of certiorari for the purpose of passing upon the question of whether the petitioner was entitled to a trial by jury on the question of whether he had made an election to receive compensation under the Workmen's Compensation Act. It is the contention of the petitioner that the trial court erred in denying a jury trial. This court is committed to the rule that a question of election to take under the Workmen's Compensation statute is a preliminary question to be decided by the trial court prior to jury trial. State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992.

If petitioner was covered by workmen's compensation, then his compensation would be determined by The Industrial Commission of Arizona, and the superior court would not have jurisdiction to try the issues presented; therefore, under the procedure that has been folowed in this state for some fourteen years, the court must first determine whether it has jurisdiction before trying a case.

In State ex rel. Industrial Commission v. Pressley, supra, we held the question of election to take under the workmen's compensation statute is a preliminary question to be decided by the trial court prior to trial:

'Is the trial court the proper tribunal to determine whether Pressley has made an election? The answer is Yes. Next, is it the duty of the trial judge or the jury to decide that question? The answer: the trial judge should decide that question as a matter of law.

'In Taylor v. Hubbell, supra (9 Cir., 188 F.2d 106 at page 109), the court held that the question of election was one of law for the trial judge to decide, and said this:

"It is axiomatic that 'Every court of general jurisdiction has power to determine whether the conditions essential to tis exercise exist.' (Cases cited.) Here the district court had jurisdiction of the subject matter only if plaintiff and Sanderson & Porter were 'not in the same employ' and if plaintiff had not made an electon under the statute to take compensation. S. H. Kress & Co. v. Superior Court, supra, 66 Ariz. 67, 182 P.2d 931. Being jurisdictional, these issues were triable to the court, not the jury. And the district court properly withheld them from consideration by the jury. * * *'

'Wright on Subrogation, supra, page 79, section 36, says:

"The authority of the employer, insurer or assignee to prosecute a cause of action under the subrogation statute has been held to be a preliminary question of law to be heard and determined by the trial judge and not an essential part of the plaintiff's cause triable by the jury.'

'To recapitulate, we affirm the second Pressley case in all respects. We further order, the alternative writ of mandamus heretofore issued be made peremptory and the commission be allowed to intervene; that the commission be allowed subrogation to any and all of Pressley's rights against the third party for payments made for 'accident benefits' received by Pressley; and that the trial judge hear and decide the question of election as a matter of law before proceeding with the trial of the case on its merits.' 74 Ariz. at 415, 417, 422, 250 P.2d at 995, 996, 999

See also State ex rel. Industrial Commission v. Reese, 74 Ariz. 425, 250 P.2d 1001.

In the Pressley case, supra, we followed the general rule, as stated in 20 Am.Jur.2d, Courts, § 92:

' § 92. Power and duty to determine jurisdiction.

'A court has the power and duty to examine and to determine whether it has jurisdiction of a matter presented to it, its determination being subject, of course, to appellate review. This question should be considered by the court before it looks at other matters involved in the case, and before determining whether the parties are entitled to a jury trial if the court has jurisdiction of the case. * * *' 20 Am.Jur.2d at 453

The rule is also that set forth in 21 C.J.S. Courts § 113, as follows:

' § 113. Power of Court to Determine Its Own Jurisdiction

'Every court has judicial power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. The court necessarily decides that it has jurisdiction by proceeding in the cause.

'When at any time or in any manner it is represented to the court that it has not jurisdiction, the court should examine the grounds of its jurisdiction before proceeding further, the question of jurisdiction being always open for determination. The court may receive testimony on a preliminary question to determine its jurisdiction, and is not bound to dismiss the suit on a mere allegation of lack of jurisdiction, but may inquire into the correctness of the averment.' 21 C.J.S. at 174, 175

In the case of Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806, the court said:

'Among other defenses, the answer of the defendant alleges as a plea in bar to plaintiff's action his immunity to suit at common law by plaintiff in this case and his nonliability under the provisions of G.S. § 97--9 and G.S. § 97--10.1 of the N. C. Workmen's Compensation Act.

'A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity. High v. Pearce, 220 N.C. 226, 17 S.E.2d 108. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. in re Davis v. Custody, 248 N.C. 423, 103 S.E.2d 503. 'This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment. * * * So, Ex necessitate, the court may, on plea, suggestion, motion, or Ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding.' Branch v. Houston, 44 N.C. 85.

'When the trial judge in the absence of the jury heard and decided all questions relating to the court's jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the...