Sumid v. City of Prescott

• Citation: 27 Ariz. 111,230 P. 1103
• Decision Date: 10 December 1924
• Docket Number: Civil 2220
• Parties: RICHARD SUMID, Appellant, v. CITY OF PRESCOTT, Appellee
• Court: Supreme Court of Arizona

230 P. 1103

27 Ariz. 111

RICHARD SUMID, Appellant, v. CITY OF PRESCOTT, Appellee

Civil No. 2220

Supreme Court of Arizona

December 10, 1924

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweene, Judge. Judgment reversed and cause remanded.

Messrs O'Sullivan & Morgan, for Appellant.

Mr. A H. Gale, City Attorney, Mr. Le Roy Anderson and Mr. George W Nilsson, for Appellee.

OPINION

ROSS, J.

The plaintiff, who is the appellant here, seeks by his complaint to recover from the defendant city damages for personal injuries suffered while he was engaged as an employee in constructing a tunnel connecting an underground water-main with the city reservoir, in which the defendant's water supply is stored for delivery to its inhabitants. The complaint sets forth that defendant owns its waterworks system, and at the time of the injury, and for a number of years prior thereto, had been operating it, selling and delivering water to consumers for pay; that the work plaintiff was doing was necessary and hazardous. He bases his right of recovery on the Employers' Liability Law (chapter 6, title 14, Civil Code 1913), claiming that his injury was due to a condition or conditions of his occupation.

The defendant's demurrer raised the point that it was not liable under such law for two reasons: (1) That the Employers' Liability Law does not provide for a liability in favor of an employee as against his employer when such employer is a municipal corporation; and (2) in no event should defendant be liable because the work in which plaintiff was injured was being carried on by it in its political or governmental capacity. The court sustained the demurrer and entered judgment of dismissal.

The question for decision is purely one of law, and depends upon the meaning to be ascribed to the word "corporation," as used in describing those employers liable to pay damages under the Employers' Liability Law. The statute (paragraph 3154) makes "any employer, whether individual, association, or corporation" liable to an employee (when his injury is not caused by his own negligence) in those occupations declared and determined in paragraph 3156 to be hazardous, among which is mentioned, "(9) All work in the construction and repair of tunnels, subways and viaducts." The limitation in the statute is in the character of the employment and not in the character of the employer. The occupation in which the injury or death occurs must be one of those declared and determined to be hazardous, and, that desideratum being satisfied, the liability would seem to follow, whether the employer be a natural person, or an association of natural persons, or a corporation. The facts and circumstances set out in the complaint clearly constitute a cause of action under the Employers' Liability Law against any and every employer, unless it be a municipal corporation. In other words, if the plaintiff had been hurt in the circumstances and manner described while working for an individual, or a partnership, or a private corporation, his employer, such employee's injury not having been caused by his own negligence, would obviously be liable in damages.

The question is, Does the word "corporation" include a municipal corporation as well as a private corporation? Every dictate of policy and reason would answer this question in the affirmative, especially when the enterprise is one of a private or business nature. The underlying purpose and aim of the Employers' Liability Law was to protect the employee, or his dependents, from personal injury losses sustained in hazardous occupations, by shifting such losses to the public as added cost of production. If a municipality enter the field of private industry and enterprise, it can care for such losses as well as an individual, or an association of individuals, or a private corporation could by adding the losses to the cost of production. To exempt it from such liability while imposing liability upon others engaged in the industry would give a municipality an unfair and discriminatory advantage over its competitors, should there be any.

The right of action under the Employers' Liability Law is radically different from the common-law right of action for negligence. Instead of restricting the common-law right, it introduces into our law a policy of liability extending and enlarging that right. To construe the statutory action as unavailable to an employee of a municipality engaged in private enterprise would be a denial of a right analogous to the common-law right of recovery for negligence. Under the common law a municipal corporation exercising proprietary or business powers was regarded quo ad hoc a private corporation, and was liable to the same extent and on the same principles as a private corporation. 28 Cyc. 1287; 4 Dillon, Munic. Corp., 5th ed., §§ 1631, 1670; Lloyd v. Mayor, 5 N.Y. (1 Selden) 369, 55 Am. Dec. 347; Safety Insulated Wire & Cable Co. v. Mayor of Baltimore, 66 F. 140, 13 C.C.A. 375; City of Henderson v. Young, 119 Ky. 224, 83 S.W. 583; Illinois Trust & Sav. Bank v. City of Arkansas City, 76 F. 271, 34 L.R.A. 518, 22 C.C.A. 171; Keever v. Mankato, 113 Minn. 55, Ann. Cas. 1912A, 216, 33 L.R.A. (N.S.) 339, 129 N.W. 158, 775. In the latter case it is said:

"When a municipality engages in a private enterprise for profit, it should have the same rights and be subject to the same liabilities as private corporations or individuals."

The construction contended for is not in harmony with the spirit or purpose of the law. It would be establishing a rule more restrictive than the common-law rule in analogous cases, and it would discriminate between employers of labor in the same occupations under the same or similar circumstances.

The word "corporation," in a context somewhat similar in Lord Campbell's Act, has been construed to include municipal corporations. Lord Campbell's Act, in some form or other, has been adopted by most every state in the Union. Before it was enacted no right of action existed for wrongful death. It created a right of action, and our court has decided that it was a new...