S. H. Kress & Co. v. Superior Court of Maricopa County, 4978

• Decision Date: 23 June 1947
• Docket Number: 4978
• Citation: 66 Ariz. 67,182 P.2d 931
• Parties: S. H. KRESS & CO. et al. v. SUPERIOR COURT OF MARICOPA COUNTY
• Court: Arizona Supreme Court

182 P.2d 931

66 Ariz. 67

S. H. KRESS & CO. et al. v. SUPERIOR COURT OF MARICOPA COUNTY

No. 4978

Supreme Court of Arizona

June 23, 1947

Original proceeding for writ of prohibition by S. H. Kress &amp Company and Clarence L. Wise against the Superior Court of Maricopa County, Honorable Edwin Beauchamp as Judge thereof.

Alternative writ of prohibition made peremptory.

H. S McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for petitioners.

Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for respondent.

Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., and Henry S. Stevens, all of Phoenix, amici curiae.

Stanford, Chief Justice. La Prade and Udall, JJ., concur.

OPINION

Stanford, Chief Justice.

This matter comes to us on an application for a writ of prohibition sought by S. H. Kress and Company and Clarence L. Wise, who are represented by the regular attorneys for the Industrial Commission of Arizona.

On or about the 24th day of May, 1946, George M. Seivert, by his guardian Frank J. Seivert, filed a complaint in the Superior Court of Maricopa County, Arizona, against S. H. Kress and Company and Clarence L. Wise. The basis for the action was that plaintiff was a minor, age thirteen, and therefore was employed unlawfully by defendant Wise, assistant manager of the defendant S. H. Kress and Company; that defendant corporation unlawfully permitted the said George M. Seivert to work for it; that the employment was negligence per se; and, while so employed, the said George M. Seivert was permanently injured and damages were accordingly sought through a common law action.

Separate answers were filed for Clarence L. Wise and the S. H. Kress and Company, claiming that S. H. Kress and Company was the boy's employer as defined by Article 9, Chapter 56, A.C.A.1939, and that the said company had complied with the Workmen's Compensation Law by insuring all of its employees, including the plaintiff George M. Seivert under a policy issued by the Industrial Commission of Arizona, which policy was then in good standing.

The facts further show that at the time of the accident S. H. Kress and Company caused George M. Seivert to be taken to the hospital where all reasonable first aid was furnished and the Industrial Commission provided accident benefits, including medical, hospital, surgical and nursing expense. Thereafter the doctor in attendance made his report to the Industrial Commission; the injured child filed an application with the Commission for accident benefits and compensation, and the boy's mother made application for a change of physicians which was granted, and she ratified and approved the claims for benefits filed. Formal written claims were filed with the Industrial Commission for accident benefits and compensation under the law of Arizona, and the Industrial Commission thereunder paid for the hospital, surgeons, doctors, nurses, medicines, etc., but before paying compensation benefits, the Industrial Commission required the appointment of a guardian for the said George Seivert by the Superior Court of Maricopa County. Plaintiff Frank J. Seivert, father of the injured boy, was duly appointed the guardian ad litem for his son. However, Frank J. Seivert brought an action in the Superior Court, which is the cause of this application for writ of prohibition at this time, the petitioners for the writ herein claiming that the exclusive remedy of the plaintiff is under the provisions of the Workmen's Compensation Act of Arizona.

The issue, therefore, in this case is whether or not the compensation law is binding on minors illegally permitted to work.

Article 6, Sec. 6, of our Constitution, in part, reads:

"The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; * * *"

Other states as well as Arizona have held that administrative boards and commissions created to administer such as the Workmen's Compensation Act have exclusive jurisdiction to determine all questions of fact and of law, including equitable remedies or defenses as they relate to compensation insurance, or related powers or matters, subject, of course, to the right of review as to whether the commission's orders were supported by evidence. A case from a state whose laws on this subject are similar to the State of Arizona, is the case of Employers' Liability Assur. Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456, 459, 127 A.L.R. 461. The employee in this case was a minor. We quote:

"* * * A few inquiries may be helpful. Was it the intent and purpose of the compensation law to cover every phase of the injured employee's right to compensation and the intent to cover completely the procedure for obtaining that compensation? Was it intended to invest in one tribunal, subject to the right of appeal, the right to hear and the power to dispose of every phase and branch of a controversy involving a claim for injuries sustained by a workman in the course of compensable employment? We may state the question in another way. Was it intended the procedure outlined in the compensation act should be substantial, complete and exclusive, or was it intended that parties subject to the act, namely, the workman, employer or insurance carrier might institute separate and independent actions in common law courts in order to have adjudicated various breaches or issues of liability before exhausting the remedy provided by the compensation law? * * *"

* * *

"This court has repeatedly asserted the well established principle that the workmen's compensation act establishes a procedure of its own, and that the procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases. Echord v. Rush, 122 Kan. 260, 251 P. 1112; Id., 124 Kan. 521, 261 P. 820; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 P. 396; Murphy v. Continental Casualty Co., 134 Kan. 455, 7 P.2d 84; Willis v. Skelly Oil Co., 135 Kan. 543, 11 P.2d 980; Austin v. Phillips Petroleum Co., 138 Kan. 258, 25 P.2d 581; Ketchell v. Wilson & Co., 140 Kan. 163, 165, 32 P.2d 865."

In support of his theory, respondent sets forth Article 18, Section 8, of the Constitution of Arizona, which reads in part:

"* * * provided that it shall be optional with any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue said employer as provided by this constitution; * * *"

And it is his further contention:

"* * * that even though George M. Seivert may be considered to have been an employee under the terms of the Workmen's Compensation Act, he cannot be bound by his failure to elect to reject the provisions of the Act prior to injury. This contention is based upon the fact that by the terms of the Workmen's Compensation Act this minor was not sui juris. It is our further contention that since this minor was not sui juris, it would have been impossible for him to make any valid election under the Workmen's Compensation Act, and that the law will not imply, in the case of an unlawfully employed minor, an automatic acceptance of the terms of the Workmen's Compensation Act from a failure to reject the Workmen's Compensation Act prior to injury."

Respondent states that the Arizona Workmen's Compensation Act is unique and "In no other State is an illegally employed minor deemed an employee under the Act, and at the same time not made sui juris."

Respondent quotes from the case of Ortega v. Salt Lake Wet Wash Laundry, 108 Utah 1, 156 P.2d 885, where a section of the Utah Code, akin to our Sec. 56-974 has been construed by the Utah Supreme Court. Our Sec. 56-974 reads:

"Minor deemed sui juris. -- A minor working at an age and at an occupation legally permitted shall be deemed of the age of majority for the purpose of this article, and no other person shall have any cause of action or right to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minor employee, such sum shall be paid only to the legally appointed guardian of such minor."

Respondent quotes from the Ortega case, supra [108 Utah 1, 156 P.2d 889] as follows:

"A further reason for holding the expression 'including * * * minors who are legally permitted to work for hire' to be an inclusion clause to definitely bring such minor within the meaning of 'employee' rather than an implied exclusion of 'minors not legally permitted to work for hire,' is found in Sec. 42 -- 1 -- 83. Under the law as it prevails in this state, a parent is entitled to the services of minor children and to recover in his own name and right compensation for services rendered for another by a minor child. In the absence of statute to the contrary a minor cannot in his own name and right maintain an action on such contract, although the employer is protected against claims of the parent if he pays the wages to the minor. Sec 14 -- 1 -- 4. In short, generally speaking a minor is not sui juris, and could not, in his own name and right exercise options, make binding contracts or maintain or prosecute a claim or action for wages or injuries. To enable minors not under statutory prohibitions to enter into lawful contracts for the rendering of personal service, and assure such minor, and incidentally the employer, the same protection as an adult rendering like service, Sec. 42 -- 1 -- 83 was enacted. This section provides that minors working at an age permitted by law shall be deemed sui juris for the purposes of this title, and no other person shall have any cause of action, or right to compensation for an injury to such workmen. To insure harmony between this provision and Sec. 42 -- 1 --...