Swansea Lease, Inc. v. Molloy

CUNNINGHAM, C. J. (After Stating the Facts as Above). The action is founded upon the employers’ liability law,- and the defendant has demurred to the complaint because and for the alleged reason that said law violates the Fourteenth Amendment of the Constitution of the United States. The demurrer was overruled by the lower court, and the ruling is assigned as error. This court has repeatedly held adversely to appellant’s contention, and adheres to the said ruling on the authority of Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183, Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 165 Pac. 1101, 1185, Superior & Pittsburg Copper Co. v. Davidovitch, 19 Ariz. 402, 171 Pac. 127, and Arizona Copper Co. v. Burciaga, ante, p. 85, 177 Pac. 29, decided December 21, 1918. Thd vital question presented by this record is whether there is any evidence to sustain the plaintiff’s allegations that James Chapman, deceased, was, at the time of the accident which caused his death, engaged in the performance of his duties as an employee of the defendant company, in the meaning.of that relation understood in the employers ’ liability law. The question is raised in a number of assignments of error and requires a decision. All parties must concede, if the contract [535] of June 13, 1917, was binding on James Chapman as written at the time of the accident resulting in his death, that his relation to the company defendant, as established by the said contract, was that of independent contractor, and not that of an employee, as understood in the employers’ liability law. The assignments of error deny the existence of any evidence tending to abolish the said contract. The plaintiff sets out the contract, but alleges that the contract was á “device and means contrived and put into effect by the defendant for the purpose and with the intent of enabling the defendant to exempt himself from the liability created” by the employers’ liability law. As evidence that such contract was a “device and means contrived and put into effect by the defendant” for such purpose, the plaintiff sets forth in her reply that the defendant “caused and compelled said Chapman to pay hospital fees and ground rent, and paid liability insurance to a certain indemnity company [insuring Chapman] as an employee of the defendant company, . . . and immediately upon the death of said Chapman did report said death to such indemnity company, and presented to the. said company a claim for the death of said Chapman as an employee of said defendant, and did pay wages to said Chapman at the time and in the manner that the other employees of the defendant were paid wages.” Are such circumstances evidence tending to establish as a. fact that the contract of June 13, 1917, was a “device and means” used by defendant to avoid the burdens of an employer ? They are offered for the purpose of establishing, as a fact, that a written contract, which, on its face, creates a relation between the defendant and James Chapman, is in law one other than that of employer and employee, was not a binding contract, and was void for the reason that such paper was a mere device and means contrived to escape liability imposed by statute. In other words-, such circumstances are offered by the plaintiff as sufficient evidence of a fraud practiced by the defendant company to escape a duty imposed by statute, owing to an employee. Chapman was not misled to his injury by the conduct of the defendant, and no party to the contract makes claim that the contract was abandoned. The plaintiff concedes — at least, does not dispute — that the written contract was fully performed by all parties thereto, 'and that plaintiff, as admin [536] istratrix of the estate of James Chapman, deceased, received from the defendant company, for and in behalf of such estate, final payment of its share of the contract price earned in the performance of the contract in sinking the shaft. The facts in evidence are convincing to the v effect that all parties to the said contract regarded the contract binding, and so conducted themselves, until after full performance of its terms. Consequently, the plaintiff has wholly failed to sustain by any competent evidence the allegation that said written contract was void, because it was entered into as a device and means contrived by the defendant to escape liability to' an .employee for an accident occurring in its mines, by which such employee was injured. The evidence relied upon by the plaintiff was not sufficient to establish such allegation of fiaud and thereby abrogate said written contract. The trial court erred in refusing to instruct the jury to return a verdict for the defendant, because of such failure of the evidence in such particular. The judgment is reversed and the cause remanded, with instructions to take such further proceedings in the cause as justice may require, not inconsistent with law.