United Verde Copper Co. v. Wiley

• Decision Date: 22 September 1919
• Docket Number: Civil 1651
• Citation: 183 P. 737,20 Ariz. 525
• Parties: UNITED VERDE COPPER COMPANY, a Corporation, Appellant, v. ALBERT WILEY, Appellee
• Court: Arizona Supreme Court

183 P. 737

20 Ariz. 525

UNITED VERDE COPPER COMPANY, a Corporation, Appellant, v. ALBERT WILEY, Appellee

Civil No. 1651

Supreme Court of Arizona

September 22, 1919

APPEAL from a judgment of the Superior Court of the county of Yavapai. John A. Ellis, Judge. Affirmed.

Messrs Andeson, Coleman & Nilsson, for Appellant.

Messrs Cox, Moore & Cox and Mr. R. B. Westervelt, for Appellee.

OPINION

ROSS, J.

The appellee, while in the employment of appellant as a miner in the hazardous occupation of mining in one of its shafts "was injured [as he alleges in his complaint] by an accident arising out of and in the course of said labor service and employment, and due to a condition or conditions of such occupation or employment, and without any fault or negligence on his part in the following manner: . . . That, as a result of the aforementioned accident, plaintiff's right eye has been totally destroyed, and plaintiff has been compelled to have same removed, and an artificial eye put in its place. That he has had his eyesight injured permanently, and his ability to labor permanently diminished -- all to the great damage of the plaintiff in the sum of $15,000." He also alleges the expenditure of $250 for surgical and medical aid, care, nursing and attention.

The plaintiff bases his action upon the employers' liability law, Revised Statutes of Arizona of 1913, title 14, chapter 6. Demurrers to the complaint, special and general, were overruled, and the trial was had upon the issues made by the general denial in the answer and the allegation that the appellee was blind in his right eye at the time he entered the service of the appellant and on the date of the alleged injury, to wit, June 18, 1917. A verdict and judgment was had for $7,500.

The first contention made by appellant mining company is that the employers' liability law, under which the action was brought, is unconstitutional, as being in violation of the "equal protection" and "due process" clauses of the Fourteenth Amendment to the federal Constitution. While this contention had been raised in this court and several times overruled (Inspiration Cons. Copper Co. v. Mendez, 19 Ariz. 151, 166 P. 281, 1183; Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 P. 1101, 1185; Ariz. Copper Co. v. Burciaga, ante, p. 85, 177 P. 29), it was not finally and definitely laid to rest until June 9, 1919, when the supreme court of the United States, in the Mendez, Tomich and three other cases, appealed to it from the federal district court, held the employers' liability law was not unconstitutional because it burdened in certain hazardous occupations, the employer without fault, in the first instance, with the duty of compensating an injured employee, or in case of his death, his dependents, when the injury or death was not caused by the negligence of the employee. Ariz. Copper Co. v. Hammer, 250 U.S. -- , 39 S.Ct. 553, 63 L.Ed. 6ol. The overruling of the demurrer that raised the unconstitutionality of the law was proper, and the assignments based thereon are without merit.

It is next contended that there is no evidence to sustain the verdict, because it is not shown that appellee's earning power has been lessened by the loss of one of his eyes, and that therefore no damage was proved. Under this assignment it is insisted that the measure of damages to which appellee was entitled was the difference between his earning capacity before and after his injury, and that, if he could earn as much after as before the eye was lost, he could recover nothing. This contention is certainly a novel one, and we think without merit either in fact or law.

At the time appellee was injured, June 18, 1917, he was being paid $5.90 per day. Six months thereafter, at the trial, his earning capacity was $50 per month. His life expectancy at the time he was injured was 28.18 years. If the disparity in earning capacity continue, the loss from his injury may well equal or exceed the judgment of $7,500.

There was testimony on behalf of the appellant that it and other mines employed one-eyed miners, but one of the appellant's foremen admitted that, as between two applicants, in all other respects equal, he would employ the one with two eyes, and stated that he considered that the loss of an eye impaired a man's earning capacity. The undisputed expert testimony was to the effect that the loss of an eye diminished the power to accurately estimate and gauge distances from 60 to 75 per cent. A mere statement of the injury -- the loss of an eye and its replacement with a glass substitute -- indicates its permanency.

It is not true as a question of law that the measure of damages is the difference between appellee's earning power before and after his injury. Under the general allegation of his complaint, that he was injured and as a result thereof lost an eye, he was entitled to damages for mental and physical pain and suffering caused by the injury and extraction of his eye. The rule is stated in 17 C.J. 1011, as follows:

"No allegation as of special damage is necessary to recover for mental suffering, where this is allowed as an element of damages, since such suffering is inseparably connected with and attends personal injuries. Pain and suffering need not be specially pleaded, where inseparable from, and a natural consequence of, the physical injury."

The learned trial judge, perhaps laboring under the impression that in this kind of action no recovery could be had for pain and suffering, so advised the jury. In so doing he committed error, but it was error in favor of appellant. The rule of damages, as announced by this court in Arizona Copper Co. v. Burciaga, ante, p. 85, 177 P. 29, and affirmed in Arizona Copper Co. v. Hammer, supra, is that it includes "all loss to the employee caused by the accident, not merely in the way of earning capacity, but of disfigurement and bodily or mental pain."

There is no claim that the verdict was rendered through prejudice or passion, and there is nothing in the record to indicate that such was the case. That being so, we think the rule laid down by Chancellor KENT in Coleman v. Southwick, 9 Johns. (N.Y.) 45, 6 Am. Dec. 253, is controlling. He said:

"The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to...