State ex rel. Industrial Commission v. Pressley

Decision Date24 November 1952
Docket NumberNo. 5634,5634
Citation74 Ariz. 412,250 P.2d 992
CourtArizona Supreme Court

H. S. McCluskey, of Phoenix, for petitioner; Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel.

Hall, Catlin & Molloy, of Tucson, for respondent Frank E. Pressley.

DE CONCINI, Justice.

The parties were originally here on an appeal by certiorari from the Industrial Commission, 72 Ariz. 299, 233 P.2d 1082, hereinafter referred to as the first Pressley case. A rehearing was granted, 73 Ariz. 22, 236 P.2d 1011, hereinafter called the second Pressley case.

Pressley, while in the employ of Pioneer Constructors, was injured by a gas explosion in a manhole where he was working. He accepted accident benefits from the Commission but returned its check for compensation. For full details of what occurred see the second Pressley case.

After the decision on rehearing in the Pressley case, Pressley brought suit in the Superior Court of Pima County against the Tucson Gas and Light Co., defendant, as the third party tort-feasor whom he alleged was responsible for his injuries. The defendant answered, denying liability. The Industrial Commission filed a complaint in intervention on the ground that Pressley had no right to sue a third party, (1) because he had made an election to take compensation, and (2) that it was therefore subrogated to Pressley's right against the third party defendant. The trial court denied the commission's motion to intervene.

The commission then filed a petition for a writ of certiorari, or in the alternative a writ of prohibition, and then amended it to read 'for a writ of mandamus'. This court, under the authority of Brown v. De Concini, J., 60 Ariz. 476, 140 P.2d 224, granted the alternative writ.

The commission's petition seeks to relitigate the issues in the second Pressley case and in addition claims: (1) that Pressley should have sought review by the superior court of the commission's order that Pressley had made an election, and (2) that it was entitled to intervene and be subrogated to all of Pressley's rights against the defendant third party as set out in its complaint in intervention.

Respondent Pressley denies the commission has the right to intervene on the grounds, (1) its complaint fails to state a cause of action; (2) the commission is neither a proper or necessary party and its presence would be detrimental to Pressley because it would introduce compensation insurance into the case.

The matter was fully briefed on all issues in the second Pressley case and is now ready for determination.

Before treating the new matters raised in this action we deem it advisable to first mention that we affirm our decision in the second Pressley case in all respects. To reiterate in part:

1. An injured employee is entitled to accident benefits even though he elect to sue a third party.

2. That an injured employee is entitled to only one recovery for each of accident benefits and compensation; either from the commission or the third party defendant but he must give a reasonable election of the different remedies provided by the constitution and the statutes.

3. Sections 56-949 and 56-950, A.C.A.1939, are constitutional.

4. The commission has no power to decide whether an injured employee has made an election to take compensation but that it is a question to be litigated by the interested parties in the superior court.

The questions to be decided in this case are those of Election, Subrogation, and Intervention. We will treat them in that order.


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.

Section 56-950, supra, provides as follows:

'Election of remedy--Waiver.--Every employee, or his legal representative in case death results, who makes application for an award, or with the consent of the commission accepts compensation from an employer, waives any right to exercise any option to institute proceedings in any court. Every employee or his legal representative in case death results, who exercises any option to institute proceedings in court waives any right to any award or direct payment of compensation from his employer.'

The question then arises whether section 56-950, supra, affords the employee the 'reasonable election' or remedies required by our holdings in Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, and Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 300 P. 958; for unless it does, the section is clearly unconstitutional. In cases like this an election is a waiver of one right and the acceptance of another in lieu thereof, and we hold that to be binding the election must be with knowledge (1) of the alternative remedies, and (2) that the acceptance of one waives the right to the other. See Graybill v. Corlett, 60 Colo. 551, 154 P. 730; Craig v. Meriwether, 84 Ark. 298, 105 S.W. 585; 28 C.J.S., Election of Remedies, § 24. With this construction, section 56-950, supra, is constitutional. If the applicant does not have this knowledge, whether his ignorance be one of law or face, he has in fact made no binding election. Gardner v. Gauthier, 101 Vt. 147, 141 A. 682. The question of an election must of course be raised by the pleadings as stated in Moseley v. Lily Ice Cream Co., supra, and the petitioner must sustain his claim of lack of knowledge by reasonable evidence. See Taylor v. Hubbell, 9 Cir., 188 F.2d 106, which construed Article 18, section 6 of the Arizona Constitution to give an injured employee the right to sue a third party. We consider such employee to have that right by virtue of sections 56-949 and 56-950, supra, under Article 18, section 8; however, Taylor v. Hubbell, supra, is authority for what constitutes a binding and valid election. Subrogation, under Workmen's Compensation Acts, 1948, by William B. Wright, also defines what constitutes an election (page 27):

'It has been held that the right of election insured to an injured employee who may have a cause of action in tort against a third person, contemplates the opportunity for deliberation followed by some affirmative act on his part before he can be said to have elected to take compensation. (citing cases). The intention of the employee, as shown by the evidence, has a bearing on the question of his election and any decisive act on his part, with knowledge of his rights and of the facts, indicating an intention to pursue one remedy rather than the other determines the election. Filing a claim for compensation or even the mere acceptance of medical, surgical, or hospital aid by the injured employee, or wages during disability, is not always held to be an election to take under the act, * * *.' King v. O. P. Baur Confectionery Co., 100 Colo. 528, 68 P.2d 909; Arkansas Valley Ry. Light & Power Co. v. Ballinger, 65 Colo. 548, 178 P. 566; Barton v. Oklahoma, K. & M. Ry. Co., 96 Okl. 119, 220 P. 929.

In reporting the two former Pressley cases the NACCA Law Journal, Vol. 8, page 101, made the following comment:

'The court considered but refused to accept the argument of amicus curiae that an injured employee retains his right both to full recovery under the act and to the common law action for negligence against the third party; and that the sections of the Arizona Act dealing with third party suits are unconstitutional. The court referred to its earlier cases validating the constitutionality of the sections, but stressed 'that the injured party must be given a reasonable election of the different remedies provided by the constitution and the statutes'; and that the commission must continue to provide medical treatment (accident benefits) while the third party suit is pending; and that under the Arizona statute, if the employee gets less from the third party than he would have received under the compensation act the commission must award him the difference.

'We applaud this excellent third party statute and recommend that our members file similar bills in their own jurisdictions. See Horovitz on Workmen's Compensation, 341 n. 60.'

In Taylor v. Hubbell, supra , 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 its exercise exist.' Texas & Pacific Ry. Co. v. Gulf C. & S. F. R. Co. 1926, 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578; see State of Rhode Island v. Com. of Massachusetts, 1838, 12 Pet. 657, 37 U.S. 657, 718-720, 9 L.Ed. 1233. 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 election 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. See Weaver v. Martori, 1949, 69 Ariz. 45, 208 P.2d 652; State v. Phelps, 1948, 67 Ariz. 215, 193 P.2d 921, 924; Dolese Bros v. Tollett, 1933, 162 Okl. 158, 19 P.2d 570.'

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

'The authority of the employer, insurer of 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.' Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054; Becker v. Eastern Massachusetts St. Ry. Co., 279 Mass. 435, 181 N.E. 757; Murray v. Rossmeisl, 284 Mass. 263, 187 N.E. 622.'


In the event the trial judge decides that Pressley has elected to take compensation does the...

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