Marquez v. Rapid Harvest Co.

405 P.2d 814, 1 Ariz. App. 562

Opinions

HATHAWAY, Judge.

This is an appeal from a judgment in a personal injury action entered in favor of the defendant, Joe Macias. The defendant contended and the trial court held that the plaintiff’s exclusive remedy was under the Workmen’s Compensation Act since the defendant was a coemployee of the plaintiff.

While working for the J. W. Olberg Co. in a lettuce harvesting- operation near Will-cox, Arizona, the plaintiff was injured when struck by a truck driven by the defendant Macias, a coemployee. Olberg carried industrial insurance and the plaintiff applied for and received Workmen’s Compensation benefits for his injuries.

The plaintiff assigned error to the trial court’s holding that it did not have jurisdiction over the subject matter of the action since the defendant was a coemployee and plaintiffs exclusive remedy to recover for his injuries was under the Workmen’s Compensation Act. Our Supreme Court’s decision in S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 182 P.2d 931 (1947), has influenced the Federal Circuit Court of Appeals (9th) to conclude that Arizona is among the states in which an employee may not sue his fellow employee, when there is Workmen’s Compensation coverage. Taylor v. Hubbell, 188 F.2d 106, 109 (9th Cir. 1951). At least two other appellate courts have also made this assumption. Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946); Allman v. Hanley, 302 F.2d 559 (5th Cir. 1962).

However, in Worthington v. Industrial Commission (on rehearing) 85 Ariz. 310, 316, 338 P.2d 363 (1959), our Supreme Court indicated that whether the Workmen’s Compensation Act immunizes a fellow employee from suit is an “unresolved question.” This being the last pronouncement of our Supreme Court upon this subject, we are not bound by Kress and will consider the question as one of first impression in this state.

We find that Workmen’s Compensation laws in other jurisdictions provide, just as does the Arizona Act, that compensation under the Act shall be the exclusive remedy of an injured employee against the employer. Some appellate courts have extended to coemployees the umbrella of immunity provided employers by statute. See White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955) and cases cited therein at p. 845. Common laws rights and liabilities among coemployees are thereby abolished through judicial legerdemain merging the tortfeasor employee in the employer. The acts of the employee disappear as such and remain solely the acts of the employer. Concomitantly, the employee’s liability vanishes.

However, our problem requires examination and analysis of our statutory enactments in the light of the constitutional mandate of Article 18 § 6 of the Arizona State Constitution, A.R.S. which provides:

“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Our Workmen’s Compensation Act,¹ A-R. S. § 23-901 et seq., does not immunize an employee from suit by fellow employees, unless such immunity is contained in §§ 23-1022 and/or 23-1023, which provide: .

“§ 23-1022. Compensation as exclusive remedy; exceptions “A. The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer, except as provided by §§ 23-906 and 23-964, and except where the injury is caused by the employer’s wilful misconduct and the act causing the injury is the personal act of the employer himself, or if the employer is a partnership, on the part of one of the partners, or if a corporation, on the part of an elective officer thereof, and the act indicates a wilful disregard of the life, limb or bodily safety of employees, in which event the injured employee may, at his option, either claim compensation or maintain an action at law for damages.

“B. The term ‘wilful misconduct’ as employed in this section shall be construed to mean an act done knowingly and purposely with the direct object of injuring another.”

Ҥ 23-1023. Liability of third person to injured employee ; election of remedies

“A. If an employee entitled to compensation under this chapter is injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in event of death his dependents, shall elect whether to take compensation under this chapter or to pursue his remedy against such other person.

“B. If the election is to take compensation, the claim against such other person shall be assigned to the state for the benefit of the compensation fund, or to the person liable for the payment thereof. Such a claim assigned to the state may be prosecuted or compromised by the commission.

“C. If the election is to proceed against such other person, the compensation fund or person shall contribute only the deficiency between the amount actually collected and the compensation provided or estimated by the provisions of this chapter for such case. Compromise of any claim by the employee or his dependents at an amount less than the compensation provided for shall be made only with written approval of the commission, or of the person liable to pay the claim.”

Other than as contained above, there is no statutory provision for an election between compensation and common law remedies, nor any provisions for subrogation. Justice Struckmeyer, in his dissenting opinion in the first Worthington case noted:

“No election is required by statute to either sue or accept the benefits of the Workmen’s Compensation Law where one employee is injured by a fellow employee.” Worthington v. Industrial Commission, 85 Ariz. 104, 107, 333 P.2d 277, 279 (1958).

We are cognizant of the fact that if such a cause of action remains, the employee may very well obtain workmen’s compensation and in addition recover in litigation against a fellow employee, as generally there is no subrogation unless provided by statute. Larson, The Law of Workmen’s Compensation, § 71.30 (the rule criticized). Our Supreme Court has said:

“ * * * in absence of legislation there can be no subrogation of the employee’s rights against a third party.” State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 419, 250 P.2d 992, 996 (1952).

Our interpretation of the subject Act cannot be distorted by considerations of the possibility of increased litigation. This is a legislative problem and is immaterial to the question before us. The language of the Workmen’s Compensation Act is plain — it deals with liability to injured employees in connection with (a) an employer or (b) third person, “not in the same employ.” It is a cardinal principle that courts must observe the obvious import of the language used in a statute where such is plain and does not lead to an impossibility, and the plain meaning may not be extended though the result may be harsh. Ernst v. Collins, 81 Ariz. 178, 182, 302 P.2d 941 (1956). We must read the Act in the light of the Constitution and adopt the construction which harmonizes with constitutional provisions. Roberts v. Spray, 71 Ariz. 60, 70, 223 P.2d 808 (1950); Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 407, 158 P.2d 511 (1945).

Protection of the rights of individuals is the bedrock of our nation and we cannot judicially emasculate from the Constitution common law rights preserved therein. It is our absolute duty to protect constitutional rights. Bristor v. Cheatham, 75 Ariz. 227, 234, 255 P.2d 173 (1953). In recognition of this duty, we are convinced that the constitutional mandate of Article 18 § 6, supra, preserving common law rights and correlative duties in tort can be altered only through clear and unambiguous expression in the Constitution and implementing legislative enactments. Brady v. Roosevelt Steamship Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Marion v. United States, D.C., 214 F.Supp. 320, 323 (1963).

This principle was aptly stated in Allman v. Hanley, supra. In holding that the Federal Employees’ Compensation Act did not abrograte the common law right of an employee to sue a coemployee, the Fifth Circuit Court of Appeals quoted from Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), which quoted Brady v. Roosevelt Steamship Co., supra, as follows:

“ We can only conclude that if Congress had intended to make such an inroad on the rights of claimants * * it would have said so in unambiguous terms’ and ‘in the absence of a clear Congressional policy to that end, we cannot go so far.’ ” 302 F.2d at p. 564.

The same view is expressed in Gee v. Horvath, 169 Ohio.St. 14, 157 N.E.2d 354 (1959) :

“If the protection of the present workmen’s compensation law of this state is to be expanded to include fellow employees as well as employers, this is a question of legislative policy to be determined by the General Assembly or by constitutional amendment.” 157 N.E.2d at p. 357.

Application of the rule “inclusio unius est exclusio alteráis” to the Act’s conspicuous silence regarding coemployees hints at legislative recognition of the constitutional limitation. In fact they seem to be strangers to the Act. There is no mention of rights, duties or procedures relating to coemployees, nor is there any.provision for their contribution to the fund, thereby entitling them to insurance against liability under the Act. The benefits of the Compensation Act accrue to those who undertake its burdens. Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 918 (1950). The defendant Macias assumed no burdens and is entitled to no benefits. There is no specific extension of gratuitous protection to coemployees for their own misconduct. Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634, 641 (1947). In the absence of a clear expression to the contrary, public policy favors the retention of tort common law rights and duties of fellow employees as a deterrent to careless or negligent conduct. Tawney v. Kirkhart, supra.

In this mechanized era of unique dangers, due consideration for the safety of others in the same employ should not he allowed to be cast aside, but rather should be fostered and encouraged. Lord Chancellor Lore-burn in Lees v. Dunkerly Bros. (H.L.), 103 L.L.R. 467, deplored the advocacy of a contrary doctrine:

“I can hardly imagine a more dangerous or mischievous principle than that which it is sought to set up here * * It is a very difficult proposition to say that a man is not to be responsible for his own negligence. * * * Everyone must have an interest in maintaining the law in a sense hostile to such a proposition, and I should think that, of all classes in the community, workmen who work together in many dangerous employments, have the greatest interest of all in preventing the doctrine which has been put forward very carefully and reasonably from being accepted.”

In Judson v. Fielding, 227 App.Div. 430, 237 N.Y.S. 348, aff’d 253 N.Y. 596, 171 N.E. 798 (1929), the New York court, construing an election statute similar to ours, held that their Workmen’s Compensation Act did not grant immunity to fellow employees,² stating:

“It is the words, ‘not in the same employ,’ upon which this defendant relies in asserting that no action can be brought against a coemployee. The right of action to recover damages for injuries resulting in death is secured by the Constitution (article 1, § 18). The amendment providing that the Legislature might enact laws for compensation for injuries to employees or for their death resulting from injuries without regard to fault as a cause thereof (article 1, § 19), by its terms, permitted the Legislature to furnish a remedy through compensation exclusive of all other rights and remedies in such cases. It is ancient law that the servant is liable in damages for his own tortious acts, even though at the time he was engaged in the work of his employer. Murray v. Usher, 117 N.Y. 542, 547, 23 N.E. 564. We find no intent or purpose in the statute to absolve any but the employer from liability in a civil action for damages caused by his own wrong. Rights long existing should not be taken away except by a statute where the purpose to do so is clear. The employer has not been sued, and the .coemployee should be held liable unless the right to maintain an action against him is forbidden by positive statute. To hold that a fellow servant should under no circumstances be liable to another for damages resulting from a negligent or willful act occurring in the course of their common employment would be fraught with highly dangerous consequences and would remove in a large measure the restraint of personal responsibility of the employee for his acts. We think that the most rational interpretation of the statute is to hold that the Legislature did not intend to require an election of remedies in the case of coemployees.” 237 N.Y.S. at p. 354.

As in the Judson case, supra, the defendant Macias relies on the words in our statute “another not in the same employ” as establishing that no action can be brought ■ against a coemployee. The language is simply descriptive of the class of third persons dealt with in the statute and identifies such third person as another not a coemployee, or “not in the same employ.” To ■expand the plain meaning of this language •to imply that no action can be brought against a coemployee is unwarranted.

While it is not our intention to advocate a policy encouraging litigation between co-employees, the constitutional mandate of Article 18 § 6, supra, requires that we hold that the Workmen’s Compensation Act does not grant immunity from suit to fellow employees.

In view of our holding as to the jurisdictional question, it is unnecessary to consider the other assignments of error. The cause is reversed and remanded for further proceedings not inconsistent with this opinion.

KRUCKER, C. J., concurs.

1 . The Act was authorized by the following amendment to the Arizona Constitution, Article 18 § 8:

“The Legislature shall enact a Workmen’s Compensation Law applicable to workmen engaged in manual or mechanical labor in all public employment whether of the State, or any political subdivision or municipality thereof as may be defined by law and in such private employments as the Legislature may prescribe by which compensation shall be required to be paid to any such workman, in case of his injury and to his dependents, as defined by law, in case of his death, by his employer, if in the course of such employment personal injury to or death of 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 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 any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue said employer as provided by this Constitution; and, provided further, in order to assure and make certain a just and humane compensation law in the State of Arizona, for the relief and protection of such workmen, their widows, children or dependents, as defined by law, from the burdensome, expensive and litigious remedies for injuries to or death of such workmen, now existing in the State of Arizona, and producing uncertain and unequal compensation therefor, such employee, engaged in such private employment, may exercise the option to settle for compensation by failing to reject the provisions of such Workmen’s Compensation Law prior to the injury.

“The percentages and amounts of compensation provided in House Bill No. 227 enacted by the Seventh Legislature of the State of Arizona, shall never be redueed nor any industry included within the provision of said House Bill No. 227 eliminated except by initiated or referred measure as provided by this Constitution. As amended, election Sept. 29, 1925, eff. Nov. 2, 1925.”

2 . It is interesting to note that within five years after the Judson decision, the N. Y. Legislature modified its laws so as to extend immunity to coemployees. (Laws of N. Y. of 1934, Chapter 095).