Deyo v. Arizona Grading & Construction Co.

ROSS, C. J. This is an action for damages for personal Injury under the employers’ liability law. Appellant was employed by the appellee in the month of February, 1914. The latter part of March, under his supervision and direction, the appellee began the construction of a tunnel for the La Cienga Land & Cattle Company in Pima county. At the — 150 — same time appellee was running the tunnel it was doing some construction work in the city of Tucson. Appellant had charge of the work at both places. On the 10th of May he went from Tucson to the tunnel site, arriving about 12 o’clock, and, finding three holes drilled, he loaded them and primed them; he then lighted the fuses, but only two of them exploded; after waiting about an hour and a half he went back to the tunnel to see what had happened to the missed shot, and just as he reached the face-of the tunnel it exploded, from which he received the injuries, complained of. Quoting his own language, he testified: “I did work. Whatever there was to be done. Any kind' of work that came up. Shooting or handling a drill, and whatever kind of work they needed done at the time. I was. in charge of other men there. I was superintending the job. ... I loaded these holes and primed them. I loaded the-holes myself. I had assistance; the man who got the powder for me. I had been in the habit of doing this work there off and on. Off and on I had been doing the work before.” On April 3, 1914, the appellee created, by a resolution, the office of superintendent with authority to purchase such matters and things as in the ordinary course of the business of' the company were needed by it for such work as it had in hand, with the provision that if such matters or things should cost exceeding $150, it should be submitted to the board of directors for their approval and ordered through the president of the corporation. It was further provided in said resolution that the superintendent should have full charge of the actual operations being carried on by the company and those engaged in the work, and that the checks of the company given for necessary disbursements should be signed by the superintendent and auditor. The compensation of the superintendent was fixed at $200 per month. Appellant testified that his duties were the same before the passage of this resolution as afterward, but that his salary theretofore-had been $150 per month. It is shown that he employed and discharged the men working on the job under him and directed them in their work. The case was tried to a jury and after the appellant had rested his case, upon motion of appellee, the jury was instructed by the court to return a verdict for the appellee. — 151 — TMs motion was granted, as we understand it, “upon the ground that the plaintiff had failed to establish his status as a workman, but had shown himself to have been the general superintendent and manager of the defendant corporation, and that the accident was not shown to have arisen out of or in the course of the labor, services or employment for which he was engaged by the defendant company.” The appeal is prosecuted from the order directing a verdict and from the judgment. The specification of error involves the correctness of the direction to the jury upon the close of appellant’s case. In other words, under the employers’ liability law, constitutional and statutory, is a person employed in hazardous occupations, as superintendent, entitled to recover for injuries received while in such employment, or are the provisions of the law for the benefit only of subordinate or inferior employees in such employment? The provision of the Constitution immediately bearing upon the question (section 7, article 18) is as follows: “To protect the safety of employees in all hazardous occupations, in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry the legislature shall enact an employers’ liability law, by the terms of which any employer, whether individual, association, or corporation shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employee in the service of such employer in such hazardous occupation, 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. ’ ’ It will be observed that this section of the Constitution makes use of the words “employer and employee” as descriptive of those intended to be affected. It is also declaratory of a new principle with an injunction to the law-making body to provide a procedure for the enforcement of the rights and liabilities growing out of the relation of the employer and employee, as therein enunciated. This provision of the Constitution differs from section 8, article 18, which provides for the institution of a workmen’s compulsory compensation law, and uses the correlative words “employer and workman” as descriptive of the relation intended to be affected. The — 152 — legislature, in carrying out the mandates contained in these two provisions of the Constitution, failed to discriminate as the Constitution makers had, and loosely, if not carelessly, used the words “employee and workman” interchangeably. The workmen’s compensation law is limited and applicable to “workmen engaged in manual or mechanical labor in such employments as the legislature may determine to be especially dangerous” by the very terms of the Constitution. Without trying to determine what grades or classes of workmen this was intended to cover, it is evident that it did not intend to reach other than those “engaged in manual or mechanical labor.” There is no such limitation in the constitutional provision providing for the employer’s liability and the employee’s rights thereunder. What the legislature did to make effective the employer’s liability provision of the Constitution is contained in chapter 6, title 14, Civil Code of 1913. As originally passed, the title of this chapter was “to provide for employers’ liability for injuries to workmen in especially dangerous occupations.” Sections 3153, 3154 and 3155, being the first three sections, are as follows: “3153. This chapter is and shall be declared to be an employers’ liability law as prescribed in section 7 of article XVIII of the state Constitution. “3154. That to protect the safety of employees in all hazardous occupations in mining, smelting, manufacturing, railroad, or street railway transportation, or any other industry, as provided in said section 7 of article XVIII of the state Constitution, any employer, whether individual, association, or corporation, shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employee in the service of such employer in such hazardous occupation, in all eases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured. “3155. The labor and services of workmen at manual and mechanical labor, in the employment of any person, firm, association, company, or corporation, in the occupations enumerated in the next section hereof, are hereby declared and determined to be service in a hazardous occupation within the meaning of the terms of the preceding section. By reason — 153 — of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein. ’ ’ It will thus be seen that the words “workman and employee” have been indiscriminately used by the lawmakers ' in describing the status of those rendering service to an employer. It is the contention of appellee that the word “workman” was advisedly and purposely used, and that it should be given the limited meaning ordinarily understood. "We think that the declaration of the legislature of its intention to pass a law under the provisions of section 7, article 18, of the Constitution should be the key to the door of what follows. It would be unfair and unreasonable to hold that a co-ordinate branch of the government, in the face of a declared purpose, would proceed intentionally to do something else. Any unhappy or careless use of words, especially when expressive of cognate ideas, should not be construed so as to defeat the avowed intention of the law-making body. That the legislature should have used the word “employee,” where the word “workman” has been used, is without question. It is equally as clear, we tMnk, that the word “workman,” when used, was intended to be as comprehensive as the word “employee” and was substituted for it, not for a change of meaning in the text, but as expressive of the same idea. Section 7, article 18, of the Constitution, provided that employers of certain hazardous enterprises should be liable in damages to any employee injured while in the service, and directed that the legislature should enact an employers’ liability law. The avowed purpose of chapter 6, supra, was to carry out that mandate. The first rule of interpretation and construction of statutes is that the intention of the legislature, when determinable, shall control. This rule is very well stated in the following cases: “In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other eir — 154 — cumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit [the object] and purpose of a statute which are to be regarded in its interpretation, and if they find fair expression in the statute, it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some provisions of the statute.” People v. Lacombe, 99 N. Y. 43, 1 N. B. 599. “In the construction of statutes, it is a cardinal rule that the intention of the legislature must govern. Suth. St. Const., par. 218; Sedg. St. & Const. Law, p. 325. Also, that when the intention can be gathered from the statute, words may be modified, altered or supplied to give to the enactment • the force and effect which the legislature intended.” Territory v. Clark, 2 Okl. 82, 35 Pac. 882. “Statutes must have a rational interpretation, to be collected not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment.” Anderson Driving Park Assn. v. Thompson, 18 Ind. App. 458, 48 N. B. 259. Taking this rule as a guide, we must hold that wherever the word “workman” is used in chapter 6, supra, it was intended to have the meaning of the word “employee” as used in section 7, article 18, of the Constitution. Such a construction is not only reasonable, but necessary. It gives the statute a meaning in harmony with the constitutional provision. It is within the reason of the law and accomplishes its purpose. Omitting some words, but retaining its meaning, the constitutional provision is in effect that the legislature should enact a law for the protection of the safety of employees, by the terms of which any employer should be liable for the death or injury of any employee in the service of such employer in hazardous occupations in all cases in which such death or injury was not caused by the negligence of the employee killed or injured. This was a command or mandate to the legislature to do a certain thing. The legislature, by section 3154, supra, obeyed this direction both in letter and — 155 — spirit by declaring the employer’s liability for injury or death of an employee in hazardous occupations when not occasioned by the negligence of the employee. The grade or station of the employee or the kind of work being performed by him, neither by the Constitution nor section 3154, was of any consideration; the important thing being that the employee was “in the service of such employer” in some hazardous occupation at the time of the injury or death. However, section 3155, supra, undertakes to limit the protection of the constitutional provision to “the labor and services of workmen at manual and mechanical labor” in the occupations enumerated in section 3156 which are defined as especially •dangerous and hazardous. Whether the legislature exceeded its authority and power in restricting the beneficiaries of the law to those engaged in manual and mechanical labor only, we do not deem it necessary to determine under the facts of this case. That •question was not presented in argument by counsel, but it appears to be within the reason of the rule laid down by this court in Behringer v. Inspiration Consolidated Copper Co., 17 Ariz. 232, 149 Pac. 1065, in which we held that the legislature did not possess the power to enlarge the mandate of the Constitution as to the workmen’s compulsory compensation law. If it may not enlarge the mandate so as to bring within its provisions persons not mentioned by the Constitution, it would seem, upon reason, that the legislature is without power to exclude from the benefits of the constitutional provision persons therein designated as beneficiaries, and confer the right of action only on those engaged in manual and mechanical labor. The appellee contends that the appellant was not an employee of its within the meaning of the law; that it was never intended that the word “employee” should be construed to mean a superintendent, but that it was intended to mean a person in the service of an employer in a grade subordinate to that of superintendent or manager. The New Standard Dictionary defines employee as: “A person who is employed; one who works for wages or a salary; one who is engaged in the service of or is employed by another.” — 156 — Webster defines employee: “One employed by another; a workman in the service of another; usually distinguished from official or officer or one employed in a position of some authority.” Labatt, section 1949, says: “In its most extended signification this term [employee] is applicable to any person employed by another.” The word “employee” has frequently been defined by the courts in construing the statutes giving liens to employees and wage-earners and statutes giving preference to such creditors, against other creditors, of insolvents. The word usually, however, in such cases is associated with other descriptive words. Matter of Stryker, 158 N. Y. 526, 70 Am. St. Rep. 489, 53 N. E. 525, was a case in which the court had under consideration a statute which gave preference to “the wages of the employees, operatives and laborers” of corporations in the hands of a receiver. The court there said: “When two or more words of analogous meaning are employed together, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. Hence, although the word employee is general and comprehensive, it must be limited by the more specific words, operatives and laborers, which are found in the statute.” The New Jersey preference law defines those entitled to-preference as all “persons doing labor or service of whatever character for, or as workmen or employees in, the regular employ of such corporation.” Labatt, at section 1948, says: “It has been held, with reference to these descriptive words,, that neither a president nor a director is entitled to a. preference in respect to remuneration due for services rendered in any of those capacities, but that the provision is applicable to the salary of a manager, although he also discharges the functions of a president, and to the salary of a bookkeeper, although he is also a director. It has also been inti-mated that the secretary and treasurer of a company, if they are not directors, are entitled to a preference. ’ ’ The word “employee” as used in our Constitution and statute, stands alone, unassoeiated with any other words descriptive of the employed. “Any employee in the service of such employer” is declared a beneficiary of the law. The — 157 — language used is comprehensive enough to include any and every person in the service of the employer from the president to a hod carrier. There are good reasons, however, for not giving the word “employee” such a broad and comprehensive meaning in lien and preference laws, and those reasons are very well expressed in England v. Beatty Organ & Piano Co., 41 N. J. Eq. 470, 4 Atl. 307, wherein it is said: “The president of a corporation, under the act, is and must be a director. He is part and parcel of the organization. There must be employer as well as employed; and the question arises: Does the act authorize the organization, which is the employer, to employ itself? ... I am well satisfied that to make favorites of this class would be against the true spirit of the act as well as against a wise policy. The spirit of the act is manifestly to pay ‘laborers doing labor or service’ . . . and not to give a preference to the individual members of the corporation; and not that they may employ themselves and maintain both attitudes, employer or employee, as their individual gain and the loss of creditors may dictate. And as to the public policy of so extending the construction as is urged, let it be considered how strong the inducement as well as how convenient for every director to be employed ‘doing labor or service as a workman or employee’ for his company; and let it also be considered what a prolific source of injustice and fraud such construction would prove to be. There are numerous considerations in this direction which will arise to the mind of the thoughtful.” These definitions of “employee,” to which we have referred, and in all cases where the courts have had occasion to define it, have been more or less influenced by the context in which the word was used. It is frequently and indeed “usually distinguished from official or officer or one employed in a position of some authority,” but the reason of that lies in the fact of its association with other qualifying words and because of a manifest intention upon the part of the legislature to so use it. It is not necessary to determine or decide that it was used in its most comprehensive sense in the Constitution and statute for the purposes of this ease. It may be that in a proper ease its meaning should not be ex — 158 — tended so as to include officers of a corporation who are the corporation itself, or a part thereof. However, the reasons assigned under the preference and lien laws for not giving it its. most comprehensive signification can hardly he said to apply to the employers’ liability law. While in those cases the officers could and might be disposed to vote themselves large salaries and, if preferred or allowed, thus consume the assets, of the company, it is extremely improbable that any officer would intentionally occasion his own death or injury in order to become a beneficiary under the employers’ liability law. All business enterprises have certain overhead and maintenance charges, and the modern idea is to include in these-any damages suffered by those carrying on and conducting: a business. In all of the especially dangerous and hazardous occupations enumerated in the statute when prosecuted on a large scale, it is as essential to have superintendents as it is to have workmen, and no good reason appears to us why a. business or enterprise or occupation should be charged with damages sustained by workmen and not be charged with damages sustained by. the superintendent, if he should be injured in the service without negligence upon his part. We-are therefore of the opinion that the appellant is not only within the letter, but within the spirit, of the law, and that-the court erred in directing a verdict for the appellee. Judgment is reversed and cause remanded for new trial- FRANKLIN, J., concurs.