Superior & Pittsburg Copper Co. v. Tomich

• Citation: 19 Ariz. 182,165 P. 1101
• Decision Date: 02 July 1917
• Docket Number: Civil 1535
• Court: Supreme Court of Arizona
• Parties: SUPERIOR & PITTSBURG COPPER COMPANY, a Corporation, Appellant, v. FRANK TOMICH, Sometimes Known as FRANK THOMAS, Appellee

165 P. 1101

19 Ariz. 182

SUPERIOR & PITTSBURG COPPER COMPANY, a Corporation, Appellant, v. FRANK TOMICH, Sometimes Known as FRANK THOMAS, Appellee

Civil No. 1535

Supreme Court of Arizona

July 2, 1917

Dissenting Opinion of Justice Ross separately reported at 165 P. 1185.

APPEAL from a judgment of the Superior Court of the county of Cochise. Alfred C. Lockwood, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

The appellee was employed by the appellant in the underground workings of its mines in Cochise county. The appellee's duties required him to load, push on a track, and unload ore cars. The place for the performance of such duties was on the 900-foot level of the mine. The track was laid through a drift from the point of loading the cars to a point of unloading the ores into a chute. The appellee was an experienced car man, accustomed to such work in other mines. When the car had received its load of about 2,000 pounds weight, the appellee was required to start the car moving on the track, and control its movements until the chute was reached. Timbers were so placed about the chute as to facilitate the unloading or dumping of the load. On November 9, 1914, and a few hours after appellee had first commenced his labors in the said drift, he started a loaded car from the point of loading along the track toward the chute, and following the car with his right hand holding the top of the rear end of the car as it moved over the track by gravity appellee stumbled over something on the floor or slipped on the track or on the ground, and was thrown to the ground, but continued to hold to the rear end of the ore car as it moved toward the chute. So holding to the car, the car struck the obstructions about the chute with such force that the fastenings on the doors of the car released, and the car ended over so that three fingers on appellee's right hand were caught between the rear end of the car which he was holding and a cross timber about the chute. The fingers were lacerated, crushed, and bruised so that they were amputated about the first joints of each finger. The said surgical operation was done at the appellant's hospital department, and when the wounds healed the nerves were left so exposed as to be sensitive and tender and causing suffering, and a further amputation of the fingers is required to relieve such condition. The appellee commenced this action to recover damages for his said injuries, basing his cause of action on the employers' liability law (chapter 6, tit. 14, Civil Code Ariz. 1913) and upon negligence. The cause of action founded upon negligence was expressly waived and abandoned by plaintiff upon the trial. The defendant demurred to the complaint upon the ground that the employers' liability law and the constitutional mandate, in obedience to which such statute was enacted, are both void because they are contrary to and contravene the Fourteenth Amendment to the Constitution of the United States, in that they deprive the defendant of its property without due process of law, and deny to it the equal protection of the law, by subjecting it to unlimited liability for damages for personal injuries suffered by its employees without any fault or negligence on its part, and because such statute attempts to give plaintiff the right to recover damages of defendant notwithstanding the injuries for which such damages are claimed were contributed to and in part caused by plaintiff's own negligence, and attempts to deprive the defendant of the right to wholly defeat this action by interposing the defense of contributory negligence. The defendant alleges that the damages, if any, resulted wholly from plaintiff's neglect and carelessness, and his failure to use any care or caution in his own behalf at the time and place of the alleged injury. The further defense is that the plaintiff contributed to the injury by his own negligence, in that at the time of its occurrence the plaintiff was giving no attention, or insufficient attention to his duties, and failed to push the car in the proper manner or place his hands on the car in the proper position, and other like failures are alleged.

The court overruled the demurrers, and the cause was tried to a jury. The jury returned a verdict against the defendant for the sum of $8,000. Judgment followed the verdict. The defendant appeals from the judgment and from an order refusing a new trial.

Messrs. Knapp & d'Autremont and Mr. H. E. Pickett, for Appellant.

Mr. Fred Sutter and Mr. J. T. Kingsbury, for Appellee.

OPINION

CUNNINGHAM, J.

(After Stating the Facts as Above). The appellant assigns as error the overruling of its demurrers to the complaint for the reason both chapter 6, title 14, of the Revised Statutes of Arizona of 1913, Civil Code, upon which the action is based, and the constitutional mandate, section 7 of article 18 of the state Constitution, in obedience to which said chapter 6 was enacted, violate section 1 of the Fourteenth Amendment to the Constitution of the United States, in that the employers' liability law, said chapter 6, title 14, attempts to deprive the defendant of its property without due process of law by imposing unlimited liability on it as an employer for personal injuries sustained by an employee while in its employ in cases where defendant has been guilty of no fault, want of care, or neglect of duty; and because the employers' liability law contravenes and is in violation of sections 5 and 7 of article 18 of the Constitution of the state of Arizona, in that said statute attempts to give plaintiff the right to recover judgment for personal injuries notwithstanding the injuries for which the judgment is sought were contributed to and in part caused by plaintiff's negligence, and attempts to deprive defendant of the right to wholly defeat this action by showing that said injuries were contributed to and in part caused by plaintiff's own negligence.

The questions of the constitutional validity of the employers' liability law are raised in a number of different objections. The defendant assigns as error the admission and rejection of evidence and misconduct of the trial judge during the trial of the cause, working a prejudice and resulting in an excessive verdict.

The appellant groups the assignments of error under four divisions covering the points of law raised in the cause: First, the employers' liability law, chapter 6, title 14, under which the action is brought, is unconstitutional and void; second, that the plaintiff failed to make out a case warranting recovery under the employers' liability law; third, error in admitting and excluding evidence and in giving instructions, and, fourth, an excessive verdict.

Under the first division the case of Inspiration Consolidated Copper Co. v. Mendez, ante, p. 151, 166 P. 278, on the authority of New York C.R. Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 247, holds to the opinion that the employers' liability law is valid within the police powers of the state, and does not come into conflict with the Fourteenth Amendment of the Constitution of the United States; and that such liability law is a valid, subsisting enactment and is a law of the state of Arizona.

Appellant contends that chapter 6 of title 14 is void, for the reason its terms conflict with sections 5 and 7 of article 18 of the state Constitution. Section 5 is that:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."

This section does not restrict the power of the legislature to modify or abolish the defense of contributory negligence. The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as matters of law, but such defenses are made to depend upon facts when they are properly interposable, and, interposed, they are required to be established by a preponderance of the evidence to the satisfaction of the jury. Whether the plaintiff's negligence contributed to the wrong, or whether the plaintiff assumed the risk and danger from which the wrong arose, must be determined as a fact from the evidence by the jury.

Section 7 commands the legislature to enact an employers' liability law, by the terms of which any employer shall be liable for the death or injury of workmen employed in all hazardous occupations named, and any other industry designated by the legislature, whenever such death or injury is caused by any accident due to a condition or conditions of such occupation, except when such death or injury has been caused by the negligence of the employee killed or injured. The only restriction placed upon the legislative power in carrying out said constitutional mandate found in the section of the Constitution is the exception, viz.:

Liability is incurred "in all cases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured."

In all other cases the legislative power is unlimited by said section 7.

A careful examination of chapter 6 of title 14 discloses no violation of such limitation on the power of the legislature. The exception is carefully preserved in paragraph 3154 of the statute. If the injury resulted from an accident arising out of and in the course of labor, service and employment in a hazardous occupation, and was due to a condition, or conditions, of such occupation or employment, and was not caused by the negligence of the employee the liability to damages exists. If, however, the injury was caused by negligence to which the injured workman contributed, the liability of...