Consolidated Arizona Smelting Co. v. Ujack

139 P. 465, 15 Ariz. 382, 1914 Ariz. LEXIS 162

• Court: Arizona Supreme Court
• Decided: March 17, 1914
• Docket: Civil No. 1331
• Status: Published

Opinions

ROSS, J.

This action involves the right of the appellee, the employee, to recover damages for personal injuries alleged to have been occasioned by the negligence of the appellant, the employer.

♦Among the defenses interposed, and it is the only one relied upon here, is that the rights of appellee are found in and measured by the compulsory compensation law, as contained in chapter 14, Laws of Arizona, First Special Session of 1912. It is conceded that appellee at the time of his injury was engaged in a hazardous occupation such as named in the compulsory compensation law,.and in the employers’ liability law (chapter 89, First Session Legislature of Arizona of 1912).

Under the laws of Arizona, an employee who is injured in the course of his employment has open to him three avenues of redress, any one of which he may pursue according to the facts of his case. They are: (1) The common-law liability relieved of the fellow-servant defense and in which the defenses of contributory negligence and assumption of risk are questions to be left to the jury. Const., secs. 4, 5,^ art. 18. (2) Employers’ liability law, which applies to hazardous occupations where the injury or death is not caused by his own negligence. Const., sec. 7, art. 18. (3) The compulsory compensation law, applicable to especially dangerous occupations, by which he may recover compensation without fault upon the part of the employer. Const., sec. 8, art. 18.

Prior to the adoption of the Constitution, an employee who had suffered an injury, or his personal representative, in ease of death, had but one remedy—the common-law liability with all of its defenses of fellow-servant, contributory negligence, and assumed risk. The Constitution declared for this state a different and more advanced as well as humane public policy, one in consonance with the present day enlightened thought and conscience by providing for the employers’ liability and compulsory compensation in all hazardous or especially dangerous employments.

The appellee contends that he was entitled, under the facts of the case, to maintain his suit for personal injury under the employers’ liability law, while the appellant insists that his exclusive remedy was to be found in the compulsory compensation law. The controverted question may be disposed of by a correct answer to this question: Does the compulsory compensation act, when not disaffirmed prior to injury, limit the remedy of the injured employee to the compensation provided in that act, or may he after the injury elect between his remedy under the act and the other remedies of the common-law liability or employers’ liability? The appellee was in the employment of appellant at the time the workmen’s compensationlaw took effect, and had been in such employment for more than ten days thereafter when he was injured. Neither the employer nor the employee had taken any affirmative action in recognition of the law, either to approve or repudiate it.

The section of the Constitution and the sections of the workmen’s compulsory compensation act bearing upon the question are as follows:

“See. 8. The legislature shall enact a workmen’s compulsory compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employee, or employees, to. exercise due care, or to comply with any law affecting such employment; provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution.” Const., art. 18.

Workmen’s compulsory compensation act:

“Sec. 4. In case such employee or his personal representative shall refuse to settle for such compensation (as provided in section 8 of article 18 of the state Constitution) and chooses to retain the right to sue said employer (as provided in any law provided for in section 7, article 18 of the state Constitution) he may so refuse to settle and may retain said right.” Paragraph 3166, Ariz. Rev. Stats.

“Sec. 7. When, in the course of work in any-of the employments described in section 3 above, personal injury by accident arising out of and in the course of such labor, service, or employment, is caused to or suffered by any workman engaged therein, by any risk or failure specified in section 2 hereof, then such employer shall be liable to and must make and pay compensation to the workman injured, and his personal representative, when death ensues, for the benefit of the estate of the deceased, for such injury at the rates and in the manner hereinafter set out in this act; provided, . . . and provided, further, that the employer shall not be liable under this act in ease the employee refuses to settle for such compensation and retains his right to sue as provided in sec. 4 of this act.” Paragraph 3169, supra.

‘ ‘ Sec. 14. This act shall take effect on the 1st day of September, 1912; and ten days from and thereafter, it shall be taken and held in law that all workmen then in the employ, and all workmen afterward employed by an employer at manual and mechanical labor of the kinds defined in section 3 of this act, are employed and working under this act, and the employer and workman shall alike be bound by and shall have each and every benefit and right given in this act the same as if a mutual contract to that effect were entered into between the employer and the workman at any time before the happening of the accident. It shall be lawful, however, for the employer or workman to disaffirm an employment under the provisions of this act by written contract between them, or by written notice by one to, and served upon, the other to that effect before the day of the accident; provided, such written contract does not provide for less compensation than as provided in this act. And in the absence of such written contract or written notice, served as above provided, it shall be taken and held that the employment and service is under this act; and the same shall be the sole measure of their respective rights and liabilities when and as provided in this act; provided, if, after the accident, either the employer or the workman shall refuse to 'make or accept compensation under this act or to proceed under or rely upon the provisions hereof for relief, then the other may pursue his remedy or make his defense under other existing statutes, the state Constitution, or the common law, except as herein provided, as his rights may at the time exist. Any suit brought by the workman for a recovery shall be held as an election to pursue such remedy exclusively.” Paragraph 3176, supra.

It will be granted, of course, that, when conflicts occur in the above quotations from the Constitution and the statutes, the latter must give way. If the Constitution makes the compensation obligatory on the employer and optional as to the employee, to be exercised after the injury, that is the end of it. The Constitution says: “The legislature shall enact a workmen’s compulsory compensation law ... by which compulsory compensation shall be required to be paid to any such workman by his employer. . . . Provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution.” This mandate to the legislature was carried out in the enacting of the workmen’s compulsory compensation law, and, in doing so, there was created a new civil action heretofore unknown to our laws, available to the employee injured in the circumstances provided by law. It is optional with the injured employee as to whether he will accept the compensation. The employee’s right to exercise this option being a constitutional right, legislation is impotent to deprive him of it. If the employee is never injured, he can make no claim for “such compensation,” nor exercise his option. After a cause of action has accrued to the employee, he may choose to accept the compensation allowed under this act, and the legislature is competent to prescribe the steps he shall take in its enforcement, but it cannot require him to elect, in advance of any injury, or the accrual of any right, which remedy he will pursue for redress.

Therefore, any expressions in the workmen’s compulsory compensation act that seemingly require that the employee shall elect, in advance of injury, his remedy for redress should be read and construed in view of the constitutional provision permitting him to exercise his option, after the injury, either to claim compensation or sue for damages. While section 14 of the workmen’s compulsory compensation act, supra,, and the first proviso thereof, when taken alone, would seem to require the employee to elect his remedy for redress of injury in advance, or rather attempts to fix his status as under that act, in the absence of a disaffirmance of its provisions by written contract or by written notice before the accident, that construction, being repugnant to the constitutional provision permitting the exercise of his option after the injury, should not be adopted, if it can be given a meaning that will harmonize with the constitutional provision. Reading section 14 in connection with other sections and provisions of the compulsory compensation act, as, for instance, section 4 thereof, which is to the effect that, if the employee, or his personal representative, refuses to settle for the compensation as provided, and chooses to retain his right to sue, he may do so; and, again, in section 7, supra, wherein it is said, “The employer shall not be liable under this act in case the employee refuses to settle for such compensation and retains his right to sue as provided in section 4 of this act,” and in the last proviso to section 14 thereof, where it is said, that, if after the accident either the employer or employee shall refuse to settle under this act or to proceed or rely upon its provisions for relief, the latter may pursue his remedy under other existing statutes, the Constitution, or the common law, and the former may defend under the provisions of the other existing law, the Constitution, or the common law, as their respective rights may exist, except as herein provided—that is, when the employer refuses to settle, the employee may still exercise his option to claim compensation under this act—it seems clear that the legislature recognized and preserved the right of the employee to exercise his option after the accident and injury.

The last sentence of section 14, reads: “Any suit brought by the workman for a recovery shall be held as an election to pursue such remedy exclusively.” This seems to us a plain declaration by the legislature that the employee is at liberty to pursue any of the remedies provided by law until he adopts one by instituting a suit for redress, when the one adopted becomes exclusive.

We therefore conclude that that part of section 14, supra, relied upon by the appellant as fixing the status of appellee under the workmen’s compulsory compensation law, with the remedy therein provided as exclusive of all other remedies, is regulatory of the respective rights and obligations of the employer and employee in those cases where injury results, and the employee exercises his option to accept compensation, and the employer refuses to settle. • This construction will harmonize it with the other provisions of the workmen’s compulsory compensation law, and also the Constitution, and is doubtless the meaning intended to be conveyed by the legislature.

The cases decided under the New Jersey compensation law, cited by appellant, do not aid us in the consideration of the question before us. The New Jersey act is not compulsory either on the employer or employee, but is elective or optional as to both. Our Constitution and compensation act make the compensation provided compulsory upon the part of the employer, and optional on the part of the employee. Just a line or two from two New York eases will sufficiently distinguish the New Jersey law from ours. In Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. Supp. 942, the court said: “However, the New Jersey act is not a compulsory statute. It is a so-called optional or elective statute.” In Pensabene v. F. & J. Auditore Co., 78 Misc. Rep. 538, 138 N. Y. Supp. 947, it was said: “The option to accept one or the other forms of remedy is equally open to both parties at the time of their contracting, and before any rights have accrued by accident.” The New Jersey supreme court, in Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 86 Atl. 451, 455, said: “Under the act neither the employer nor the employee is bound to accept the provisions of section 2, unless he chooses to do so.” It can be readily seen that the New Jersey compensation law is so widely different from ours as to make a judicial construction of it valueless when applied to our law. There is no option or election left to the employer under our Constitution and laws; for, as to him, they are compulsory.

Judgment affirmed.

FRANKLIN, C. J., concurs.