Moseley v. Lily Ice Cream Co.

• Decision Date: 30 June 1931
• Docket Number: Civil 3018
• Citation: 300 P. 958,38 Ariz. 417
• Parties: L. B. MOSELEY, Appellant, v. LILY ICE CREAM COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

300 P. 958

38 Ariz. 417

L. B. MOSELEY, Appellant, v. LILY ICE CREAM COMPANY, a Corporation, Appellee

Civil No. 3018

Supreme Court of Arizona

June 30, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Mr John W. Ray, for Appellant.

Messrs Kibbey, Bennet, Gust, Smith & Rosenfeld, for Appellee.

Messrs Cox, Moore & Janson and Mr. O. B. Decamp, Amici Curiae.

OPINION

LOCKWOOD, J.

L. B Moseley, hereinafter called appellant, while in the employ of Maricopa county, was injured by a truck owned by Lily Ice Cream Company, a corporation, hereinafter called the appellee. He made application to the Arizona Industrial Commission for compensation and was awarded the sum of $42.39, for which he accepted a check, which he cashed, retaining the proceeds after he knew it was given as compensation for his injury, and as a bar to any further recovery therefor. His doctor's bill was also paid by the commission, and thereafter it settled the case against the appellee for the amount actually paid to appellant, and to his doctor by it.

Subsequently thereto appellant brought this action, alleging that he had been injured through the negligence of appellee, asking for $5,000 damages. Appellee answered, setting up that the alleged cause of action was not at the time of filing the complaint vested in appellant, but in the state of Arizona, for the reason that appellant subsequent to the happening of the injury upon which the complaint was based had made application to the Industrial Commission for compensation therefor, and had received such compensation. It also denied any negligence. Appellant moved to strike the plea that settlement had been made as above, which motion was overruled and the case went to trial. After evidence had been offered by both parties, appellee moved for an instructed verdict on the ground that the right of action had become vested in the state and settled by it, which motion was by the court granted, and after the usual motion for a new trial had been overruled this appeal was taken.

The real and vital questions in this case are as to the constitutionality of section 1435, Revised Code of 1928, and, if such section be constitutional, as to its effect. The section reads as follows:

"Section 1435. Liability of third person to injured employee. If an employee entitled to compensation hereunder is injured or killed by the negligence ro wrong of another not in the same employe, such injured employee, or in case of death, his dependents, shall elect whether to take compensation under this title or to pursue his remedy against such other. If he elect to take compensation, the cause of action against such other shall be assigned to the state for the benefit of the compensation fund, or to the person liable for the payment thereof, and if he elect to proceed against such other, the compensation fund or person, shall contribute only the deficiency between the amount actually collected and the compensation provided or estimated herein for such case. Compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for herein shall be made only with the written approval of the commission, or of the person liable to pay the same." (Italics ours.)

It is the contention of appellant that such section is in conflict with section 6 of article 18 of the Constitution of Arizona, which is in the following language:

"Section 6. 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."

It is urged that this provision makes the former common-law action for negligence a constitutional one, and that it cannot be abrogated by the legislature. We think there is no question that this proposition, stated in the abstract, is correct. In the case of Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, we said:

"It is true that the action of negligence was originally a common-law one, but its status was, in our opinion, changed when article 18, § 6, was adopted. Its language is as follows: (quoting section 6, article 18, above quoted.)

"Taken into consideration with the preceding sections 4 and 5, it is beyond question that the 'right of action to recover damages for injuries . . . ' therein mentioned is the common-law action of negligence, and that by the prohibition against its abrogation it was taken from its status as one subject to the will of the Legislature and imbedded in the Constitution, just as firmly and truly as the Compensation Act or Liability Law. Nay, more so, for these last two had only constitutional mandates which required positive action on the part of the Legislature to make them effective, while the action for negligence needed no statutory aid, and its principal incidents were placed beyond legislative control.

"True, it was available under proper circumstances to others besides employees, but for these last it was a remedy available against an employer and guaranteed by the Constitution. To hold that a right of action whose abrogation was forbidden by the Constitution can be taken away by a statute, against the will of one to whom it belonged, merely because it was not originally created by that Constitution for his benefit exclusively, on the theory that the words 'provided by this Constitution' must be read 'created by this Constitution,' would be contrary to every principle of construction. The common-law action of negligence, as modified by the Constitution, is now as much 'provided' by that instrument for the benefit of all, be they employees or others, as are the Employers' Liability Law or the Compensation Act, for certain classes of employees, and no statute can take away the right to pursue it without granting a reasonable election to all who, on the facts, are entitled to it."

If section 1435, supra, were to be construed as taking away the right to pursue the constitutional action of negligence without granting a reasonable election to all persons...