Behringer v. Inspiration Consolidated Copper Co.

ROSS, C. J. Appellant, as plaintiff, instituted this action against appellee defendant for damages for the death of her intestate while working as employee of defendant in its mines. The action is based upon the negligence of defendant. It is brought by plaintiff as the personal representative of the deceased. A general demurrer to the complaint was sustained, and, the plaintiff electing to stand on her complaint, judgment was entered that she take nothing, and that the action be dismissed. The correctness of the court’s ruling on the demurrer is challenged by plaintiff on this appeal. The purpose of the plaintiff, as evidenced by the allegations of her complaint, was to set forth facts sufficient to entitle her to recover under the provisions of title 23 of the Civil Code, entitled “Injuries Resulting in Death,” commonly known as Lord Campbell’s Act. The question is not so much as to whether she has stated sufficient facts to constitute a [234] cause of action under said act, but whether she has the right to sue under that act, because of other provisions of the law. It is claimed by defendant the right of action resulting from the death of plaintiff’s intestate is contractual in its nature and exclusive of every other remedy because at the time of the employment of the intestate and of the fatal injury the Workmen’s Compulsory Compensation Act (chapter 7, tit. 14, Civil Code) was in effect, and, as neither the employer nor employee had repudiated its provisions, it was binding on all concerned, including the personal representative of the deceased workman. The complaint is silent as to whether the employer and employee disaffirmed the provisions of the Workmen’s Compulsory Compensation Act as therein provided or not. Paragraph 3176, Civil Code. If there was a disaffirmance, then, of course, there was no contractual understanding between them as to how claims for injury or death could be settled. If the omission to allege a disaffirmance was a defect, fatal to the plaintiff’s cause of action, the general demurrer should have been sustained. But, in the absence of such an allegation, should the court assume, as a matter of law, that there was no repudiation of the provisions of the Compensation Act, or that the employee had elected to pursue that remedy, or, rather, are not these matter of fact to be raised by plea or answer? It is evident that the defendant might be in a position to insist upon a settlement of the damages claimed, under the Compensation Act, and yet waive that right. For instance, after an election by the employee to accept compensation in such a manner as to be bound, the employer might choose to take chances in a contest for damages for negligence if sued therefor, by the employee, and be within his rights. We therefore aré of the opinion that, if there was an election to accept compensation, that fact is defensive matter, and, if not raised by plea or answer, may be waived by defendant. It follows that the general demurrer should have been overruled. There is another reason why the demurrer should not have been sustained. The Compulsory Compensation Act, supra, was passed by the legislature in response to the mandate contained in section 8, article 18, of the Constitution. That section reads: [235] “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.” Before looking to what the legislature did or attempted to do, under this command, we should determine what it had the power to do. The command to it was to pass a law “by which compulsory compensation shall be required to be paid to any such workman” for “personal injury to any such workman,” leaving it optional with the workman (employee) “to settle for such compensation or retain the right to sue said employer as provided by this Constitution. ’ ’ The legislature is limited by this constitutional mandate to providing for payment of compensation to the workman in case he should elect to accept it. The theory upon which the compensation law is made operative is one of contract and consent, at least so far as the employee is concerned, and this means a personal consent. We held in the case of Consolidated Arizona Smelting Co. v. John Ujack, 15 Ariz. 382, 139 Pac. 465, that such consent may be given after the injury is inflicted. We do not think the legislature possessed the power to enlarge the mandate of the Constitution so as to authorize the personal representative to impose on his heirs and dependents a remedy made by the Constitution open to the workman only. If the workman prior to his death should elect to settle for compensation, and thereafter die pending the settlement with the employer, the personal representative doubtless could enforce the contract, as he could any other contract of his intestate. The remedy under the constitutional provision for [236] ■compensation is restricted, as we see it, to the workman, and ■the legislative power under the mandate is limited to legislation for its efficient enforcement by him, or his personal .representative, in case he dies after electing to accept compensation. Unless there was an election of this remedy in his lifetime by the deceased, the personal representative cannot maintain the action for compensation; it being a condition of the right to maintain such a suit against the employer that the employee should himself elect that remedy. The employer is entitled to insist, after an election by the employee, upon settlement for compensation, but, when the workman dies without making such election, his rights thereunder die with him. His personal representative is then relegated to an action for damages sustained by his estate by reason of his death under the so-called Lord Campbell’s Act (title 23, supra), or an action under the Employers’ Liability Act (chapter 6, title 14, Civil Code), according as his facts fall within the one or the other. It will be seen from what we have said that the attempt of the legislature to enlarge the scope of the constitutional mandate (section 8, article 18) so as to afford the remedy therein mentioned to the personal representative or heirs or dependents of the deceased workmen in the absence of an election by the workman to accept compensation, is beyond the power and authority of the legislature, and of no avail. The enactment, in so far as it provides a remedy to the workman, is within the terms of the constitutional mandate, and a proper exercise of the legislative grant of power. Section 8, article 18, is declarative of a principle; that principle being that the employee injured should at his option take compensation from the employer when the injury was occasioned under any of the circumstances enumerated, and legislation in aid of the enforcement of that principle. was enjoined upon the legislature, but it was not directed to create rights and liabilities outside of the purview of the mandate. We conclude that the Workmen’s Compulsory Compensation Act has no application to the state of facts before us as presented by the complaint and demurrer; that if, as a matter of fact, the deceased after the injury, and before his death, elected to aeeept compensation under that act, it is matter of defense to be raised by plea or answer, and that the [237] remedy is personal to the workman, he only having the right to elect so as to make such election binding on him and his personal representative. The judgment is reversed and case remanded, with direction to overrule the defendant’s demurrer. FRANKLIN, J., concurs.