Petition for a Writ of Certiorari — Garrett v. Larsen

Supreme Court brief1967

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SUPREME COURT. 8

JOHN F. DAVIS, Cl CLERK

IN THE SUPREME COURT OF THE UNTED STATES

- October Term, 1967

ROBERT D. MorGAN,

aay | died FILED ©

Petitioner,

US.

Jack D. H. Hays, JUDGE OF THE SUPERIOR COURT

OF THE STATE OF ARIZONA,

ae oa IN AND FOR THE COUNTY OF MARICOPA, _

es 3 AND SAID SUPERIOR ‘Court, -

| and |

| METRO-GOLDWYN-MAYER, INC.,

| ; a Delaware corporation, :

| | - Real Party in Interest, —

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME. .COURT OF

THE STATE OF ARIZONA

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TABLE OF CONTENTS

Page

JURISDICTION oe eeeoneeerene sion ae ee

QUESTIONS PRESENTED 020 !entueeonee 2

_ CONSTITUTIONAL os STATUTORY

PROVISIONS: INVOLVED Tern ee aes 2

STATEMENT OF THE CASE 22pccceeeneeee ae

" REASONS FOR GRANTING THE WRIT eS

A. The majority opinion of the Arizona Supreme Court -

that the Superior Court had the right to deny

Petitioner a trial by jury, demanded upon fact

issues which are inexorably interwoven with the

- fact issues of the total’ case, violates the command

~~~ of the Seventh Amendment as made applicable to

the states through the Due Process clause of the

Fourteenth Amendment: ...........--c+acccssseeeecnsse ae

B. Election of remedies, waiver, and rene are slice

\ ative defenses and may not be decided on a motion.

to dismiss in place of a trial by jury as preserved

for Petitioner under the provisions of the United. |

States . Constitution. solichiesseczaileniedetoianiesiva anaelhelicnsioc 8

_ CONCLUSION ...... LOOSEN ul

Pe Ree ORR TE. ae

APPENDIX B o..ccseeeeee eee ‘es ny

| : i |

“TABLE OF CASES AND.AUTHORITIES —

v, Cases: ; . | pe vs : | | Page |

- Addison v. Tessier” cee

<-> 62 NM. 120, 305 P.2d 1067 (1957) eocsecseoreene 8

Alabam’s Freight Co. v., Hunt : Sh eae a

- 29 Ariz. 419, 242 Pac. 658 (1926) CREA ANNE OOD 5

Arizona Title Guerentes & Trust Co. v. Modern Ries

; 84 Ariz. 399, 330 P.2d 113 (1958) ...... canecesecreeceane G

NG Barton v. Oklabonia K. & M. Ry. Co. , ace

5 96 Okla. 119,°220 Pac. 929 (1923) --eveinceeseseeseeee .

Beacon Theatres v. Westover — Fes eee ae is

399 US. 500, 3 LEd.2d 988, 79 S.Ct. 948 (1959) ore 6, 8°

Bernard v. Michigan United Traction Co. -

S 188 Mich. 504, 154 N.W. 565 (1915) ecnerrnne ur:

16 Asin 215, 141 Pac. 841 (| ERS ae 5

; Buffum v. Chase Nat. Bank of City of New York

(7th Cis. 1951) 192 F.2d 58 cert. den. 342 US. 944,

96 LEA. 702, 72 S.Ct. 958 -neneencen itiiainte 9

os Byrd. v. Blue Ridge Rural Elec. Coop.

356 US. 525, 2 LEd.2d 953, 78 S.Ct. 893 a a

Cannon »v, Traveler's Indemnity Company -

(8th Cir. 1963). 314 F. 2d 657 sstenseansensenssensenees sseeestoees 9

City of Tucson. v. Koerber ' | is ae

82. Ariz. 347, 313 P.2d 411 (1957) coccocseccceoveeeseeee 10°

Cowles v. Obio Farmers Insurance Company pas | a

(4th Cir. 1957) 242 F.2d 73 rn. te

Dice v. Akron, Canton and Youngtown R. Co. ;

91 Ohio 239, 108 N.E.2d 343 (1950) ............. a 7

o ae ee ae ee ee SSS ee

‘TABLE OF CASES AND AUTHORITIES (Continued)

Cases | pone Page

° y 4

> iH b> ; >

ragie Hogue v, W urdack | eet ;

298 S.W.2d 492 (Mo. 1957) cosabbdsitethacs ait dntncistpnntcbiabete 11

Holland v. Stuckey | ‘hi se | |

282 S.W. 951 (Tex. 1926) pen mrentvansnccsnepsiesiesontyte 9

soe In.re Brandt's Estate ' tect

< 67. Ariz. 42, 190 P.2d 497 (1948) ..ieccssectecceeneee » 10

Jeune v. Del E. Webb Const. Co. ae ees

76 Ariz. 418, 265 P.2d 1076 (1954) ......... mabinieianin oe

Johnson v. American-Hawaiian $.S. Co. P x

. (9th Cir. 1938) 98 F.2d 847 | saseaseneaneceseesennsnecneeeltss > se

Kampmann v. Cross ree | an |

194 SW. 437 (Tex. 1917) 2. feseupdussbatuennasiids 9

Larson v. Tragesep } fe oe 3

150 Minn. 182, 184 N.W. 833, (iga1) docaihnnbindpinisteack 1

McVey v. Chesapeake Potomac Telephone.Co.

106 W.Va. 331, 145 S.E. 578 (1928) SF EEE CO 9

- Meigaiile v. Aetna Fréight Lines

360-US, 273, 3 LEd.2d 1224, 79801 1184 (1959) 8 |

_ Mapp v. Obio

ae 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961).. 8

a ‘Marks Food Corporation v. Barbara Ann Baking Co. P 2 7

(9th Cir. 1959) 274 F.2d 934 didolldetacthicedoatiditaocantien 6

. ° Meason v. Ralston Purina Co. : ‘

56 Ariz. 291, 107 P.2d 224 - (1940) pothebadeasisbiitiaa ts "10

Miles v. Lavender a

(9th Cir. 1926) 10 F.2d 450 ........ ie i

Murphey v. Valenzuela | : |

: “95 Ariz. 30, 386 P.2d-78 (1968). sstantentetonpestioiien’ - @

TABLE sd CASES AND AUTHORITIES ( Continued)

Murray v. Strike.

76 Utah 118, 287 Pac. 922 (1930) wsesetesecesesnasenesses dl

O’Rourke v. Percy Vittum Co,: : oe

166 Minn. 251, 207 N.W. 636 (1926) sscsesesorceneneee il

Parker v. Gladden - vie

oi WI coeey ATL LEd.2d 420, 87 S.Ct. 468 (1966) .. as

Red Rover Copper Co. v. Industrial Commission.’ cae pa

. 58 Ariz. 203, 118 P.2d 1102 (1941) ......... inaheeeani Sio 11

Ross Engineering Co. v. Pace

“Rothweiler v. Superior Court of Pima County ° ar ;

100 Ariz. 37, 410 P.2d 479 (1966) eeecscccceeerncnene 5S),

| Sayles v. Kansas City Structural Steel Co. f

344 Mo. 756, 128 $.W.2d 1046 (1939) nnnntaene U1

Smith v. Price Bros. Co. |

(6th Cir. 1942) 131 F.2d 750, cert. denied, 318 US.

762, 87: LEd. 1134 ....... NES PRR NSERC NaN ORLA:

Southwest Cotton Co. ¥.. Valley Bank Brig

26 Ariz. 559, 227 Pac. 986 (1908) 10

é Span v. Jackson. Walker Coal & Mining Co. . re

322 Mo. 158, 16 S.W.2d 190 (1929) dies egneiieninne’ ER

: State v. Cousins :

ee Ariz. 105, 397 p.2d 217 0966 sessenesenssenseeenesens 5

7 State v. “Pressley | ; ae

74 Ariz. 412, 250 P.2d 992 (1952). neonecengecsstnstnteneee 5 SD

: Sun Indemnity Co, v. Industrial Acc. Commission ‘ashi

As 85 C.A.2d 171, 192 P.2d 765 (1948) occ: - 10

Cases: ee ia Reamer Page

n°)

TABLE OF CASES AND AUTHORITIES ( Contirivied)

Cases: . . cad eee Page

Taylor v. Hubbell 7 sO 7 pros

(9th Cir. 1951) 188 F.2d 106 . Cs aS BOR,

— Young v. Duncan: | ey \

218, Mass. 346, 106 N.E.. 3 agi . ssomerSnvvteceseececpoonse'

CONSTITUTIONAL PROVISIONS oe ;

US. Const. amend. VII, amend. XIV, $1 1 (App A-12) 2,5, 8,12 —

STATUTES | 5 Be en

"Aria, Rev. Sat. § 23.906, § 8D and E.. fees, ce

is BF on ce” »2,3,4,7, 10, 12°.”

53 Am. Jur.

101 C.J.S.

Vol. 1 $98, fee eee) CORR ORE :

Vol. 8, § 1882, Be OST aeeceeensncneen ad iad

Udall, Anaiaite Remedies for Industri Ines

IN i SUPREME COURT OF THE UNITED STATES.

- October Term, 1967 mi.

ROBERT D. MORGAN,

"~~. Petitioner,

VS. m

Jack D. H. Hays, JUDGE OF THE SUPERIOR CouRT

| OF THE STATE OF ARIZONA, |

IN AND FOR THE COUNTY OF MARICOPA, ~

AND SAID SUPERIOR COURT,

and

| METRO-GOLDWYN -MAYER, INC.,

a Delaware corporation,

Real Party i in Interest,

' Respondents.

PETITION FOR - WRIT OF : CERTIORARI TO

_THE ‘SUPREME COURT OF

THE STATE OF ARIZONA

_' Petitioner prays ‘that a Writ of Certiorari issue to review the

Judgment of the Supreme Court of Arizona, entered in the above

entitled case April 12, 1967, .

The opinion of the: Supreme Court of Aulnten is emery at

wey Ariz. ...., 426 P.2d 647 (1967). It is attached as Appendix

“BY” hereto.

; oe os

JURISDICTION -

“The judgment and decision of. the Arizona Supreme Court

' reviewing by certiorari the propriety of a motion to dismiss by

‘the Superior Court, was rendered and entered April 12, 1967.

Chief Justice Charles C.- Bernstein and Justice Fred C. Struck-

_ meyer, Jr., joined in a written dissent. Petitioner’s petition for

rehearing was dénied May. 10, 1967, with Justices Bernstein. and

Struckmeyer dissenting..

The jurisdiction of this Court is invoked by reason of the

" provisions of Title 28 United States Code § 1257 (3).

QUESTIONS PRESENTED.

1. Despite the commands of the Seventh and Fourteenth

Amendments to the Constitution of the United States, mayan

Arizona Superior Court refuse a plaintiff a jury trial seasonably

demanded upon the fact issues which must be resolved i in making

a determination as to whether or not a workman is within the

coverage of the -Arziona Workmen's Compensation Act or alter-

natively, has an option to maintain a common-law negligence

action when these fact issues are interwoven with the fact issues~

of the total case and the evidence is in sharp dispute?

2. May a Superior Court Judge, on a defendant’s motion to

dismiss, grant the defendant’s affirmative defenses of “waiver,

release and election of remedies” in view of the Federal Con-

stitutional mandates which afford Petitioner a trial by jury by

virtue of the applicability of the Due Process clause of the Four-

teenth Amendment to the states?

- CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional and statutory provisions which

are involved will be set forth verbatim in Appendix “A”.

The Seventh and Fourteenth Amendments to the Constitution

of the United States: (App. A-12)

Section’23-906 Ariz. Rev. Stat. §§ D. and E. (App. A-12)

STATEMENT OF THE CASE

Robert D. } Seas Petitioner, : was employed by Metro-Gold-

_ —E “ .

centesiitaemieecesmea

oiiiens Inc., (hereinafter sefeired:. to as “MGM’) prior to

April 9, 1962, as a stunt man in the filming of the movie, “How

the West was Won.” On location t near Superior, Arizona, on that

day, while in discharge of his duties, he was knocked under the

wheels of a railroad car due to the reckless conduct of an assistant

director, as a result of which Morgan suffered gross and crippling

_ injuries. His right eye was destroyed, his left leg was caused to

be substantially amputated above the knee, and he was otherwise

most seyerely injured about the face, head and body. -

_ On December 13, 1962, Morgan filed a civil damage action

against MGM in the Superior Court of Maricopa County, Arizona.

This complaint was bottomed upon the common-law right of an

. employee to sue his employer for injuries sustained in the course

of his employment. Morgan alleged:

(a) His employment by MGM;

-(b) That he was directed to participate, as a part of his ¢ em-

Mast abe in a dangerous and. hazardous stunt; 7

was, to MGM's knowledge, incapable of conducting and participat-

ing in said stunt and, to the employer's knowledge, likely to

cause injury to Morgan and others;

(d) Said employee negligently, carelessly and ittibaall caused

certain logs on the train used in said stunt to shift, knocking

Morgan under. the wheels of the train and causing the train to

run over him, thereby inflicting the described injuries upon Peti-

_ tioner, causing him ‘permanent injury and loss; '

_ (e) That MGM on the date of his injury had wholly failed to

comply with the requirements of Section 23-906, A.R.S. that

notices be postéd and rejection blanks be made available to all

employees and that for MGM's failure to so do, Morgan accord-

ingly elected ‘to sue his employer for his i injuries.

MGM answered and subsequently filed a motion, in effect. re-

questing the Court to try the fact issues involved in making a deter-

mination as to whether or not Morgan was within the

of the Compensation Act when injured and hence could not sue, in

advance of the trial on other fact issues in the case, sitting without eo

a jury. The Superior Court agreed with the contentions of MGM |

and severed this phase of Morgan’s case and set it for trial before = |

the court without a jury despite the fact a jury trial had been

seasonably demanded on all fact issues.

On the motion to dismiss the trial judge received hai con- *

flicting testimony on, and decided these fact issues:

(a) Were notices pes as acu by Sie 2 3-906,

A.R.S.? | .

(b) Were rejection slips available as a de by the statute?

(ce) Had Morgan waived his optional right to sue MGM and ? | |

elected to accept workmen's compensation benefits, thereby raising |

- sub-issues of fact as to (1) his deteriorated mental and physical |

ability to act knowledgeably or at all, since he was suffering from -

gangrene, septicemia. and bacteremia some two weeks after the

accident when he purportedly signed the election of remedies, at

which time all available life saving measures were: being carried |

_ Out to save him, (2) was.he advised of his rights, before he. ac- |

cepted compensation checks, and if so, were counsel who advised

hifn misled by Industrial Commission employees as to the facts

relating to MGM’s compliance with Section 23-906?

After this non-jury hearing, the trial judge found against ©

Morgan and made findings of fact and conclusions of law and |

entered judgment dismissing Morgan’s complaint, as amended. . |

In its findings and conclusions, the trial court found that the oad

notices. required by ‘Section 23-906, A.R.S. had not been posted,

but that Morgan had actual knowledge that MGM had a work-

men’s compensation polciy and. that “actual knowledge is better

than constructive knowledge” (statutory restriction), and hence

Morgan could not sue.

. Thereafter, the Supreme Court of Arizona granted a Writ of

Certiorari for the purpose of passing upon the question of whether -

Petitioner was entitled to a jury trial and whether a motion to

dismiss was the proper procedure to determine the foregoing

REASONS FOR GRANTING THE WRIT’ |

*A. THE HOLDING OF THE MAJORITY. OF THE ARI-

_ ZONA SUPREME COURT IN DENYING PETITIONER

THE RIGHT TO TRIAL BY JURY CONFLICTS WITH

AMENDMENTS SEVEN AND FOURTEEN TO THE

UNITED STATES CONSTITUTION, AS MADE AP- —

PLICABLE TO THE STATES THROUGH THE DUE

PROCESS CLAUSE OF THE FOURTEENTH AMEND-

MENT.

_ The majority opinion emasculates the provisions of the Seventh

"Amendment to the United States Constitution which 5. which provides ia

part: “The right to-trial-by jury shall be preserved.. ~

mandatory command guarantees preservation of the cicke. of a

trial by jury. Until this, case, Arizona has ‘recognized this guar-

antee. Rothweiler v. Superior Court of Pima County, 100 Ariz.

eat: 37, 410 P.2d 479 (1966); ‘State. v. Cousins, 97 Ariz. 105, 397

P.2d 217 (1964); Brown v. Greer, 16: Ariz. 215, 141 Pac. 841

- (1914). It is axiomatic that in a common-law action for’ negli-

gence Morgan is guaranteed the preservation of a jury trial seas-

onably demanded. Alabam’s Freight Co. v. Hunt 29 Ariz. 419,

242 Pac. 658 (1926). Yet, the trial court under the guise: of

“jurisdiction” ,determined that a motion to: dismiss was proper

procedure to take evidence and determine factual i issues without a

jury.

The Supreme Court of ili predicated its decision herein

upon the antiquated Arizona decision of State v. Pressley, 74 Ariz.

412, 250 P.2d 992( 1952), (which never took into consideration

the constitutional’ issue of a trial by jury). Pressley, supra, is

bottomed upon the Ninth Circuit case of Taylor v. Hubbell

188 F.2d 106. It is interesting to note the discussion by plaintiff's

attorney in Taylor v. Hubbell, supra, now Congressman Morris K.

Udall, wherein he analyzes the Taylor case and the later Pressley

case in his booklet entitled “Alternative Remedies for Industrial

Injuries” Section 16 entitled “The Election Question—For Court

. . OF Jury?”; therein Mr. Udall points out the error now com-

pounded by the majority of the Arizona tga Court. See at

page 29:

“In Hubbell, tried in the U.S. District Court, both parties

were agreed that the election question was one for the jury. . -

However, the trial court determined the issue as a matter of

law and refused to submit it to the jury. The Court of Appeals .

affirmed plaintiff's judgment on the ground that whether there

_ had been an election went to the jurisdiction of the coutt, and

that such questions could be decided without aid of jury. In

"!- effect the- holding, turning on a Federal jurisdictional point, y, |

was that there was no reversible error in the trial court’s action.

However, the procedure followed was not recommended /as

proper and desirable in every instance. In State v. Pressley the

Arizona Court seized upon this holding and expanded it into a

doctrine that questions of election MUST in every situation be

determined by the court. It is submitted that the holding is

squarely against Article 2; Section 23, of the Constitution pre-

serving trial by jury as an absolute right in all situations and-as .

to all issues. Other decisions indicate that the Supreme Court is

without power to adopt any rule abridging or modifying a

party’s universal right to jury trial. It is suggested that the

criticized portion of the Pressley decision was made in unjusti-

fied reliance on the Hubbell case, without. a proper under-

standing of the peculiar basis of the Hubbell holding, and

without consideration of the constitutional point just dis-

‘ cussed.” (Emphasis supplied. )

Since the rendition of Byrd v. Blue Ridge Rural Elec. Coop.,

356 U.S. 525, 2 L.Ed.2d 953, 78 S.Ct. 893 (1958), which deals

directly with the necessity of jury trials in workmen’s compensa-

- tion cases, the Ninth Circuit hence recognized the error of Taylor v.

Hubbell, and has completely repudiated same, see Marks Food

Corporation v..Barbara Ann Baking Co. (9th Cir. 1959) 274

F.2d 934, relying and quoting heavily from Beacon Theatres v.

Westover, 359 U.S. 500, 3 L.Ed.2d 988, 79 S.Ct. 948 (1959).

See the footnote at page 935 of 274 F.2d:

“The theory that the existence of an effect: on interstate

commerce is a jurisdictional fact, enabling the judge to deter-

mine the issue for himself—see e.g., Gilbert v. David, 235.

* US, 561, 35 S.Ct. 164, 59 L.Ed. 360; and Stauffer v. Exley, 9

Cir., 184 F.2d 962,—will in practice deprive plaintiffs of their

right to a jury trial. See Beacon Theatres, Inc. v. Westover, 359

US. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Bertha Bldg. Corp. v.

National Theatres Corp., 2 Cir, 248 F.2d 833, certiorari

oe pene

7 Dae. oe ‘s

ee ee Be "ee Se

denied 356 U.S. 936; 78 S.Ct. 777, 2 LEd.2d 811; and-Ring v.

ina, 2°Cir., 166 F.2d 546. Anything which may appear-in — -

-———. Taylor v: Hubbell, 9 Cir., 188 F.2d 106, should be read in the -

light of Byrd v. Blue Ridge Elec. Co-op, 356 US. 525, 78 S.Ct.

893, 2 L.Ed.2d 953.” (Emphasis supplied) ~ Hage

_ Wherefore, Morgan v. MGM stands without precedent.

__. It is noteworthy that the language of Section 23-906 §§ D. and

E., A.R.S., by its historical note, discloses its adoption’ from the.

similar Ohio statute. The Circuit Court of Appeals for the Sixth

Circuit, reversed the trial. court, and held. under Ohio law that the

issue of election between a common-law negligence suit and work-

men’s compensation should have been submitted to’ the jury.

Smith v. Price Bros. Co., (6th Cir. 1942) 131 F.2d 750, cert.

denied 318 U.S. 762, 87 L.Ed. 1134, 63 S.Ct. 560. See also the

Ohio Supreme Court case of Dice v. Akron, Canton and Young

town R. Co., 91 Ohio 239, 108 N.E.2d 343 (1950), and Young

° _ v. Duncan, 218 Mass. 346, 106 N.E. 1 (1914). Questions.

relating to election of remedies under workmen’s compensation .

statutes have repeatedly guaranteed that all evidence must mani-

festly be submitted to a jury. See the oft'cited case of Johnson v.

American-Hawaiian S.S. Co. (9th Cir. 1938), 98 F.2d 847.

Earlier the Ninth Circuit, in Miles v. Lavender, (9th Cir. 1926),

10 F.2d 450, recognized the necessity of a jury trial when

expressly dealing with the question of election of remedies under

The Arizona Workmen’s Compensation Act.

» The majorjty opinion ignores the prior Arizona decision that

‘the jury is erititled to determine any competent evidence as to

whether the defendant employer posted a notice as required by the

statute. See Jeune-v. Del E. Webb Const. Co., 76 Ariz.,418, 265

_ P.2d 1076 (1954), at p. 1078: )

' “The important issue to determine in this appeal is whether

appellant submitted any competent evidence that entitled him

bo go to the jury upon the ground that defendant-appellee

failed to post a notice as required by the statute.” (Emphasis

supplied) bie i | iat

There is no justification for the denial of’ due process. The

tight to trial by jury is encompassed in the Due ‘Process clause .

Pe RMIT EIA RY AROMAT SS Oe +f *P as ep myers

of the Fourteenth Amendment. This Court has delineated the

guidelines which require the states to adhere to the fundamental

principles. of due process; Parker v. Gladden, .... US. ...., 17

L.Ed.2d 420, 87 S.Ct. 468 (1966); Mapp v. Ohio, 367 US. 643,

.6 LEd.2d 1081, 81 S.Ct. 1684 (1961); Beacon Theatres v.

Westover, supra.

This Court in its leading opinion of Byrd v. Blue Ridge Rural

Elec. Coop., supra, recognized the “affirmative countervailing .

_considerations” and discussed at length the necessity for trial by

jury. Following thereafter in Magenau'v. Aetna Freight Lines,

360 US. 273,.3 LEd2d 1224, 79 S.Ct. 1184 (1959), this

Court adhered to its conclusion expressed in Byrd that all fact

questions in a workmen’s compensation case: should be submitted

to a jury. The majority of the Arizona Supreme Court attempts

"to rationalize its disregard of the rights preserved by the Seventh

-and Fourteenth Amendments on the basis of the dissenting opinion ©

in Byrd, supra. This attempt, runs square in the face of Byrd

requiring a jury trial ina similar case.

B. ELECTION OF REMEDIES, WAIVER, AND RELEASE

ARE AFFIRMATIVE DEFENSES AND MAY NOT BE

DECIDED ON A MOTION TO DISMISS IN PLACE

_OF A TRIAL BY JURY AS PRESERVED BY THE

CONSTITUTION.

' Numerous jurisdictions have determined that the election of

remedies under workmen's compensation acts is always a ques-

tion of fact'to be submitted to a jury. See. "Barton v. Oklahoma

K. & M. Ry. Co., 96 Okla. 119, 220 Pac. 929 (1923); Addison v.

Tessier, 62 N.M. 120, 305 P.2d 1067 (1957), at 1076: |

- “Whether the plaintiff had full knowledge of the nature of

both his right to workmen's compensation benefits, and his right

to maintain an action for damages; and whether he abandoned

his right to. an action for damages in favor of accepting work-

men’s compensation benefits; and whether he knew or not that

he had « right to an action in damages at the time that he

accepted workmen’s compensation benefits, if he did so accept

- them, are all questions of fact to be Determined from the evi-

dence in reference thereto, and the issues were, therefore, prop-

erly submitted to the jury. (Emphasis — .

Tie Fee ME © pane an ice) oa -

| 9 te ° : ss ’ ? ro

See also Schneider's Workmen’s Compensation Text, Vol. 1,

Sec, 98 at 'p. 237-238. es

: “... mor in the absence of a full knowledge of the right and

duty to elect. It has been held that ignorance of the compensa-

tion act is not a mistake of law. It is a mistake of fact. ‘Mistake

of a person in respect of his own private legal rights and

liabilities may be properly regarded * * * and may be dealt

with as a mistake of fact’.” {Citing-Pomeroy Equity Jurisprud-

ence (4th Ed. 1918), 1731, § 849.] (Emphasis supplied)

and also fDi aay

101 C. J. S. § 1032, p. 596

53 Am. Jur: § 221, p. 189, 190 | |

Schneider’s Workmen’s Compensation Text, Vol. 1, § 86, Pp. .

199, 200, § 91, p. 230 ar |

| McVey v. Chesapeake Potomac Telephone Co., 106 W.Va. 331,

145 S.E. 578 (1928) SE ie

Holland v. Stuckey, 282 S.W.951, 954 (Tex.1926)

Kampmann v. Cross, 194 $.W. 437, 439, at 440 (Tex. 1917)

“Defendant in an action for damages has a right to a. jury

trial on the question of whether the parties are subject to work-

men’s compensation act.” 50 C.J.S., “Juries,” § 19, p. 734.

“The cases\uniformly hold that questions of waiver are ques-

tions of fact to \be submitted to the jury.” See.Ross Engineering

Co. v. Pace (4th Cir. 1946) 153 F.2d 35 at page 50. When the

facts of a case are in dispute regarding “waiver”, said issues should

be submitted to the jury. Cannon v. Travelers Indemnity Com-

pany, (8th Cir. 1963) 314 F.2d 657. It is elementary that the

burden of proving waiver is upon the party asserting it. Cowles

v. Ohio Farmers Insurance Company, (4th Cir. 1957). 242 F.2d

73; Buffum v. Chase Nat. Bank of City of New York, (7th Cir.

1951) 192 F.2d 58, cert. den. 342 U.S. 944, 96 L.Ed. 702, 72

S.Ct. 558. : ee | wie

In Arizona a waiver can only be effective when a jury deter-

mines the plaintiff knowingly had an opportunity to intentionally —

relinquish a right known to him. See Arizona Title Guarantee

& Trust Co. v. Modern Homes, 84 Ariz. 399, 330 P.2d 113

(1958); Murphey v. Valenzuela, 95 Ariz. 30,386 P.2d 78.

10.

. (1963); City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411 ee

(1957); In re Brandt’s Estate, 67 Ariz. 42, 190 P.2d.497 (1948);

Meason v. Ralston Purina Co., 56 Ariz. 291, .107. P.2d 224

(1940); Southwest Cotton Co. v. Valley Bank, 26 Ariz. 559, 227, -

Pac. 986 (1924). |

Therefore, ouly a jury should determine Morgaai’ s relinquish:

‘ment of his rights, as. ‘opposed to the summary deprivation of a _

jury trial under the occult device of a motion to dismiss.

The only evidence adduced at the motion to dismiss, medical

: or otherwise, as to Morgan’s lucidity on the day of his pufported

signature accepting benefits came from Petitioner's treating physi-

cians who testified in essence that: he was administered 325 milli-

grams of demarol, that he underwent an operation on that same

day, and further, that he was completely irrational and incapable

of knowing anything for three days prior to his purported Sig-

nature; that his right eye‘was sewn shut, he was positioned on a

- fracture bed with his gangrenous left leg open'and draining, that

~ his face and scalp were severely lacerated and infected, and that -

his sacrum and perineum areas were severely injured and infected,

and that he had numerous other fractures and lacerations through-

out his body. (See testimony of Drs. Jarrett and Hunter, treating

physicians. )

It goes without saying that a jury trial should be afforded an -

_ injured and,incompetent workman who purportedly executed a

_ waiver and election under such circumstances. ‘See Sun Indemnity

_ Co: v. Industrial Acc. Commission, 85 C.A.2d 171, 192 P.2d 765

(1948); Schneider’s Workmen’s. Compensation Text, Vol. 8, -

§ 1882, at page 657; Southwest Cotton Co. v. Valley Bank, supra.

‘When’ the defendant, MGM, -failed to comply with the pro-

-visions of A.R.S. § 23-906, by failing to post and kéep ‘posted

. the notices as required under this section, Morgan was then free

to file and maintain a common-law action for negligence. . 7

The finding of the trial court that. Morgan “had knowledge” that _

MGM had a wotkman’s compensation policy does not permit

the trial court.to circumvent the strict requirements of posting of

notices which must be present so that Petitioner's rights under due

as process of law are not violessa: A compensation ‘statute a this

"Minn, 182, 184 N.W. 833 (1921); Sayles v. Kansas City Struo- ’

tural Steel Co., 344 Mo. 756, 128 S.W.2d 1046 (1939);

| (1926); Bernard v. Michigan United Traction Co., 188 Mich

_workmen’s compensation act prior to employment, it was stated

_ atrial by a jury withholds from the individaal perhaps his most

hature is: strictly construed . against the employer, in order to

afford Petitioner every. due process of law. See Span v. Jackson

Walker Coal & Mining Co., 322 Mo. 158, .16 S.W.2d 190

(1929); Murray v. Strike,76 Utah 118, 287 Pac. 922. (1930);

Schneider’s W orkmen’s Compensation Text, Vol. 1, § 90; “Rem-

edy under act exclusive, exceptions.” Arizona is listed in the foot-

note as: adhering to this rule. See also Larson v: Trageser, 150

O’Rourke v. Percy Vittum Co., 166 Minn. 251, 207 N.W. 636

504, 154 N.W. 565 (1915); Hogue v. Wurdack, 298 SW.2d

492 (Mo. 1957). Where an employee was required to reject the

in Red Rover Copper Co. v. ne Commission, 58 i. 203, —

118 P.2d 1102 (1941):

« “.* * * che constitutional amendment arid the legi

enacted thereunder declare the public policy of the State of

Arizona. No contractual consent, no statute of limitations; no

laches nor estoppel can prevail against public policy, and any

agreements made and any acts done in violation of it are neces-

sarily void. * * *” (Emphasis supplied )

CONCLUSION.

This Court has consistently rejectéd the decisions of states that

tread upon the constitutional liberties of individuals and emascu-

late the guaranteed fundamentals of due process.- The denial of

sacred constitutional preseryation. It is respectfully submitted that

for the foregoing reasons, this priiee for a writ tof ‘certiorari, —

should be granted. | elas

Respectfully submitted, A a3 4

MARK WILMER and CHARLES M. BREWER

400 Security Building

Phoenix, Arizona 85004

Attorneys for Petitioner |

Teter wiatr erro

fv APPENDIX A

UNITED STATES CONSTITUTION

_ AMENDMENT 'VIL.

In Suits at common law, where the value in controversy shall —

exceed twenty dollars, the sight of trial by jury shall be preserved,

and no fact tried by a jury, shall be-otherwise reexamined in any

Court of the United States, than according to the rules of the

common law.

Section 1. All persons,born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

_ person of life, liberty, or property, without due process of law;

‘nor deny to any person within its jurisdiction the equal protection

_ of the laws.

ARIZONA: REVISED STATUTES § 23-906 ~

D. Every employer engaged in the occupations designated in

this chapter shall post and’ keep posted in a conspicuous place upon

his premises, in all languages spoken by his employees and avail-

_able for inspection by all workmen, a notice in substantially the

following form:

“All employees are hereby: notified that in the event they do

not specifically reject the provisions of the compulsory compensa-

tion law they are deemed by the laws of Arizona to have accepted

the provisions of such law, and to have elected to accept com-

pensation under the terms of such law, and that under the terms

thereof employees have the right to reject the same by written

notice thereof prior to any injury sustained, and that blanks and

forms for such notice are available to all employees at the office

of this company.”

E. If an employer fails to post iad keep walle the notice as

required by this section, or fails to keep available at the place

where the employees are hired the blank forms of notice to be

signed by the employee, no employee who thereafter engages in

employment for such employer, during the time that the notices

are not posted or during the time that the blanks are not available,

shall be deemed to have accepted the provisions of this chapter,

and it shall be optional for such employee, if injured during the

period when blanks were not available or the notice was not

posted, to accept compensation under the provisions of this chapter

‘or maintain other action against the employer.

APPENDIX B

-IN THE SUPREME COURT OF THE STATE OF ARIZONA

Ratet ett In Banc

ROBERT D. MORGAN,

; Petitioner,

JACK D. H. HAYS, Judge, Superior Court

of the State of Arizona, in and ‘for the

County of Maricopa, and said SUPERIOR

areca

; Respondents,

1 and

METRO-GOLDWYN-MAYER, INC.

Real Party in Interest

"No. 8653

Review by Certiorari from the Superior Court |

The Honorable Jack D. H. Hays, Judge

AFFIRMED

SNELL & WILMER |

by Mark Wilmer

Phoenix

Attorneys for Petitioner

RICHARD J. DANIELS Phoenix -

JENNINGS, STROUSS, SALMON |

& TRASK ey Phoenix

by Rex H. Moore Pn ant

by Rex E. Lee ; noe

, 2s . Attorneys for Respondents

and Real Party in Interest

"McFarland, Justice: aT,

‘Robert D. Morgan, hitiiles referred to as petitioner, filed

_ @ petition with this court seeking issuance of a writ of certiorari

_ to test the penpeiety of the granting of a motion to di smiss by

—-_

——

15.

Jack D. H. Hays, Judge of the Superior Court, Maricopa County,

hereinafter referred to as respondent, in an action -brought by

petitioner against Metro-Goldwyn-Mayer, Inc., a Delaware cor-

poration, real party in interest, hereinafter referred to as MGM*

Petitioner filed a complaint in Superior Court, Maricopa County,

Arizona, ‘on seid 13, 1962, agains’s MGM in which he

alleged that on April 9, 1962, while in the employ of MGM —

in the capacity of a “stunt man” in the production of a motion

picture “How the West Was Won,” being filmed in. part in

Maricopa County, petitioner was injured through negligence.

of MGM, and suffered severe injuries as a result of said negligence.

On April 30, 1964, MGM, through: its attorneys, filed a motion

to dismiss under Rule 12, Arizona Rules of Civil- Procedure,

claiming that the court lacked jurisdiction over the subject mat-

ter of the claim for relief, and sought an order setting this motion

for preliminary hearing to the court. Respondent ordered the,

preliminary hearing on the motion to dismiss by minute entry of

May 19, 1964. Petitioner filed with this court a petition for writ |

of certiorari on June 4, 1964, seeking relief from the. order of |

respondent granting a preliminary hearing on MGM's motion to

dismiss for lack of jurisdiction over the subject matter, on the |

grounds that petitioner was entitled to a jury trial. We denied

» this petition by order of June 9, 1964.

After a hearing lasting four days, respondent took the motion

under advisement, and advised counsel that he was declining to

rule upon the jurisdictional questions in advance of trial, and that.

_the jury trial on the issue of common law negligence and damages

. would proceed. MGM then filed a petition for a writ of mandamus

with this court. We granted a peremngeary * writ on. June 17, 964,

a commanded respondent:

. forthwith to rule on the matter of jurisdiction of said

aaa

court in the above-entitled matter before proceeding to trial.” |

By order of June 17, 1964, respondent granted MGM’s motion

to dismiss for lack of jurisdiction, and in his findings of fact and

' conclusions of law respondent found that petitioner’s exclusive

remedy was nena either inthe Industrial Accident Commission

tn oe OR

* 16

of the State of California, or The Industrial Commission of Ati-

zona, and:

' “By’ virtue’ of the aia conclusions, this Court does not

have jurisdiction over ‘the subject matter of this lawsuit and

therefore the defendant’s Motion to Dismiss should be

_ granted and this-cause should be dismissed and judgment should _

be entered in favor of the defendant.”

The judgment of dismissal for lack of jurisdiction was filed

on January 5, 1965. Petitioner filed his notice of appeal on

February 26, 1965, but the appeal was not perfected by filing

within sixty days a bond for.costs as required under Rule 73(b), .

Arizona Rules of Civil Procedure, as amended 1961.

. Petitioner then filed a petition for writ of certiorari with the

Court of Appeals of Arizona, Divisionone, which was denied.

The petition was then presented to this court, and we. granted

the writ of certiorari for the purpose of passing upon the question

of whether the petitioner was entitled to a trial by jury on the:

question of whether he had made an election to receive compen-

sation under the Workmen’s Compensation Act. It is the con-

' tention of the petitioner that the trial court erred in denying a jury

trial. This court is committed to the rule that a question of election

to take under the Workmen’s Compensation statute is a prelimi-

nary question to be decided by the trial court prior to jury trial. :

State v. Pressley, 74 Ariz. 412, 250 P. 2d 992.

If petitioner was covered by workmen’s compensation, then his

compensation would be determined by The Industrial Commission

of Arizona, and the superior court would not have jurisdiction to

try the issues presented; therefore, under the procedure that has

been followed in this state for some fourteen years, the court

- must first determine whether it has jurisdiction before trying a

In State v. Pressley, supra, we held the question of election to

take under the workmen’s compensation statute is a’ preliminary

question to be decided by the trial court prior to trial:

“Is the trial court the proper tribunal ‘to determine whether

Pressley has made an election? The answer is Yes. Next, is it

425, 250 P. 2d 1001.

Yaa

the duty of the trial judge or the jury to decide that question?

. The answer: the trial judge should decide that question as

a matter of law. —

* * .*

“In Taylor v. Hubbell, supra [188 F. ‘2d at page 109}; the

_ court held that the question of election was one of law for

the trial judge to decide, and said this: ;

“Tt is axiomatic that “Every court of general sosiadiction ‘is

power to determine whether the conditions’ essential to its —

exercise exist.” [Cases cited.} Here the district court had juris- —

diction of the subject matter only if plaintiff and Sanderson -

& Porter were “not in the same employ” ‘and if plaintiff had

' mot made an election under the statute to take compensation.

S. H. Kress & Co. v. Superior Court, supra, 66 Ariz. 67, 182

P.2d 931, Being jurisdictional, these issues were triable to

the court, not the jury. And the district court properly withheld

them from’ consideration by the jury .

“Wright on Subrogation, supra, page 79, section 36, says:

“The authority of the employer, insurer or assignee to prose-

cute a cause of action under the subrogation statute has been |

held to be a preliminary question of law to be heard and

determined by the trial judge and not an essential part of the

plaintiff's cause triable by the jury.’

_" @& & @

“To recapitulate, we affirm the second Pressley case in all -

respects. We further order, the alternative writ. of mandamus

heretofore issued be made preemptory and the commission be

allowed to intervene; that the commission be allowed subro-

"gation to any and all of Pressley’s rights against the third party

for payments made for ‘accident benefits’ received by Pressley;

and that the trial judge hear and decide the question of elec-

tion as a matter of law before proceeding with the trial of th.

case on its merits.” 74 Ariz. at A15, 417, 422; 250 P. 2d at

995, 996, 999

See also State’ ex rel. Industrial. Commission v. Reese, 74 Ariz.

In the Pressley case, supra, we followed the general rule, as

stated in 20 Am. Jur. 2d, Courts, § 92:

“§ 92. Power and duty to determine jurisdiction. |

“A court has the power and duty to examine and to determine

whether it has jurisdiction of a matter presented to iit, its de-

_ termination being subject, of course, to appellate review. This

question should be considered by the court before it looks

- at other matters involved in the case, and before determining

whether the parties.are entitled to a jury trial if the court has

jurisdiction of the case... .” 20 Am. Jur. 2d at 453

The rules is also set ae in 21 C.J.S.,-Courts, § 113, as

follows:

“8 113. Power of Court to Determine Its Own Jurisdiction

“Every court has judicial power to hear and determine, or

: inquire into, the question of its own jurisdiction, both as to

parties and as to subject matter, and to decide all questions,

whether of law or fact, the decision of which’ is necessary

__to determine the question of jurisdiction. The court necessarily’

decides that it has jurisdiction by proceeding in the cause. -

“When at any time or in any manner it is represented to the.

court that it has not jurisdiction, the court should examine the

grounds of its jurisdiction before proceeding further, the ques-

tion of jurisdiction being always open for determination. The

court may feceive testimony on a preliminary question to deter-

_ mine its jurisdiction, and is not bound to dismiss the suit on a

mere allegation of lack of jurisdiction, but may inquire into the

correctness of the averment.”’ 21 C.J.S. at 174, 175

In ‘the case of Burgess v. Gibbs, 262 N.C. 462, 137 SE. 2d 806,

the court said:

“Among other defenses, the answer of the defendant alleges

as a plea in bar to plaintiff's action his immunity to suit at

common. law by plaintiff in this case and his nonliability under

the provisions of G.S. § 97-9 and G.S. § 97-10.1 of the N.C.

Workmen's Compensation Act.

“A universal principle as old as the law is that the proceedings

of a court without jurisdiction of the subject matter are a nullity.

* High v. Pearce, 220 N.C. 266, 17 S.E. bd 108. If a court finds

at any stage of the proceedings it is without jurisdiction, it is its

"- duty to take notice of the defect and stay, quash or dismiss the

suit. In re Davis v. Custody, 248 N.C. 423, 103 S.E. 2d 503.

‘This is necessary, to prevent the court from being forced into

an act of usurpation, and compelled to. give a void judgment.

* * * So, ex necessitate, the court may, on plea, suggestion,

motion, or ex mero motu, where the defect of jurisdiction is

apparent, stop the proceeding.’ Branch v. Houston, 44 N. C.

“When the trial judge in the absence of the jury heard and

- decided all questions relating to the court’s jurisdiction to

- entertain the instant action, he followed the sound rule that

every court necessarily has inherent judicial power to inquire’ |

into, hear and determine the questions of its own jurisdiction, .

whether of law or fact, the decision of which is necessary to

determine the questions of its jurisdiction. [Cases cited.]

“In. Bridges v. Wyandotte Worsted Co., supra, [243 S.C. 1,

, 132 SE. 2d°T8], the Court ‘said:.

“ “The issue of jurisdiction is basically one of law. It involves

the determination by the court of its right to proceed with the

litigation. A decision of this question by the court deprives a

litigant of no right to a jury trial of the issue of liability

because, if the court has no jurisdiction, the litigants have no

rights which they may assert in that court.. The right to have —

a jury pass upon the controverted factual issues must of necessity

relate to the assertion of the right of the litigant which has been

allegedly violated, which presupposes a court having jurisdic- —

tion to grant the relief sought. The determination of the

jurisdictional question ‘by the court is not a denial of any con-

_ stitutional right of a litigant to a jury trial, but simply a

determination of the forum. in which thase rights may properly

be asserted. The decision of the question of whether the

court has jurisdiction is a preliminary one to the determination _

of the merits of the cause, and is for the court.to decide.’” 137

S.E. 2d at 807, 808°

In Adams v. Davison-Paxon Company, 230 S.C. 532, 96 S.E. 2d

566, the court stated the same rule: | |

“It has been consistently held that whether the claim of an

injured workman is within the jurisdiction of the Industrial

Commission is a matter of law for decision by the court, which

includes the finding of the facts which relate to jurisdiction.

{Cases cited.] ie

“Thus' the trial court should have in this case resolved the _

conflicts in’ the evidence and determined the fact of whether

Emporium was performing a part of the ‘trade, business or

_. occupation’ of the department store-appellant and, therefore,

whether. respondent’s remedy is exclusively under the Work-

men’s Compensation Law : ...” 96 S.E. 2d at 571, 572..”

Petitioner relies most heavily on the case of Byrd v. Blue,

Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 2 L.Ed. 2d

_ 953, 78 S.Ct. 893, in which the Supreme Court of the United

States refused to follow the procedure of the state court in South —

Carolina; however, in doing so, it recognized a distinction in the

procedure in the federal courts and that in the state courts—which

distinction is specifically applicable in the State of Arizona. == @

The Court stated:

“We have discussed the pore upon the assumption that

the outcome of the litigation may be substantially affected by

. whether the issue of immunity is decided by a judge or a

- jury. But clearly there is not present here: the certainty that

a different result would follow, cf. Guaranty Trust Co. v. .

York, 326 U.S. 99; 89 L. Ed. 2079, 65 S.Gt. 1464, 160 A.L.R.

1231, supra, or even the strong possibility that this would be

the case, cf. Bernhardt v. Polygraphic Co. of America, Inc.

350 U. S. 198, 100 L. Ed. 199, 76 S. Ct. 273, supra. There

are factors present here which might reduce that possibility.

The trial aes in the federal system has powers denied the

judges. of many States to comment on the weight of evidence

and credibility of witnesses, and discretion to grant a new trial

if the verdict appears to him to be against the weight of the

evidence. We do not think the likelihood of a different result

* is so strong as to require the federa! practice of jury determina-

tion of disrupted factual issues to yield to the state rule in the

interest of uniformity of outcome.” 2 L. Ed. 2d at 963, 964

We would also call atterition to the fact that this was not a

unanimous opinion, and the dissenting opinion, as stated by ©

_ Justice Whittaker, succinctly states why we should not ‘Gepart :

from Pressley, supra. _

“Tt thus seems to be settled under.the South Carolina Work-

men’s Compensation Law, and the decisions of the highest

ig one for decision by the coust, not by a jury. The Federal

District Court, in this diversity case, is bound to follow the

substantive South Carolina law that would be applied if the

trial were to be held in a South Carolina court, in which State

the Federal. District Court sits. Erie R. Co. y.. Tompkins, 304

in ga

Pet iprrcenccperumetuiesmsmearntins pore tear aig

U. S.,64, 82 L. Ed. 1188; 58 S. Cr. 817, 114 A. L. R. 1487...

“, .. [W]e are dealing with a right to recover derived not from

the United States but from one of the States. When, because

the plaintiff happens to be a non-resident, such a right is en-

forceable in a federal as well as in a State court, the forms and

\ mode of enforcing the right may at times, naturally enough,

\ vary because the two judicial systems are not identic...” 2 _

LEd. 2d at 968,969 | 3

Justice Whittaker does not follow thé: reasoning of the majority

in holding that the difference in the procedures allowing the

“judges of many States to comment on the weight of evidence

and credibility of witnesses, etc:,” as sufficient safeguard against

affecting the substantial rights of the partiés.

Petitioner has also cited a number of Arizona cases which he con-

tends supports his position, which were decided prior to. our

decision in Pressley, supra. We do not deem it necessary to com-

ment on these cases, for the members of the court were aware of.

them at the time of the decision in Pressley. We also call attention

to the fact that such cases as‘Boyden v. Lamb, 152 Mass. 416, 25

N.E. 609 (1890), and Coghlan v. White, 236 Mass. 165, 128

| NE. 33 (1920), dealt with a waiver of the right to bring court

damages’ after electing to receive compensation. In a more recent

"case, Nealon v. Sullivan, 334 Mass. 213, 134 N.E. 2d\886

(1956), the Massachusetts court, in determining the question of

whether: an electiori in a workmen’s compensation case should be.

decided by the judge or the jury, the court stated:

'. “... If having accepted compensation he prosecutes an action

"at law against such other person, a preliminary question is

: presented to the eourt whether such action was authorized. This

" question is to be decided by the judge. (Citing cases)” 134 N.E.

State v. Pressley was decided after mature consideration. Such.

a case should not be overruled unless it is required by impelling

reasons. We find no such reasons to permit the question of jur-

isdiction to’ be submitted) to a jury in the trial of the case on the.

merits which might well result in a two or three week trial in a

| 22 |

case where court would have to direct a verdict in favor of a

defendant | the evidence. We do not feel that the rule (Rule

42(b) Rules of Civil Procedure, 16 A.R.S., as amended

1966) permitting the court to order a separate trial on the ques-

tion of jurisdiction would be sufficient to overcome this objection, --

in that it would require delay and determination by the court as.

| to whether the facts in each case would justify such a separate trial.

We have held—in State ex rel. Industrial Commission v: Reese,

~~ 74 Ariz. 425, 250 P.2d 1001—that the Industrial Commission has

a right to intervene in a question of jurisdiction. Such an inter-

vention might also result,in confusion, if the question ‘of juris-

diction were decided by the jury. .

hisisiodoe alae. cominnds Cant the-cnnre arsed tithes tea.dece

did not support the court’s holding that it did not have jurisdic-

tion. One of the grounds given by-the court below in so holding

was that petitioner had made a waiver under § 23-1024. ae

court "stated:

“The piniealt by making a claim for Workmen's. dinialiaciatiais

~ benefits and | continuing to accept the same with full knowledge

of his legal rights and with full knowledge of the legal condi-

tions precedent to a suit against his employer, waived any right

or option, if any; which he ever had to file any claim in this

Court against his employer.” ”

This conclusion of the court was supported by its findings of facts:

_. “29. Following his admission to the hospital and on or about

April 16, 1962, plaintiff sought and obtained the legal advice

of the law firm of Snell.& Wilmer, Phoenix, Arizona, and in

icular, consulted with Mr. Frederick K. Steiner, Jr., a

‘partner, and Donald Daugh an associate of that law firm.

“30. On April 16 arid again on April 19, 1962, when plain-

tiff was interviewed by said attorneys while in the ‘hospital, he

was lucid and responsive and was able to give an account of

the accident and expressed a strong desire to sue his employer

for what he believed was their negligence. He advised said

pncetinge Sies tee Se sens sees Servants seepectng, Mok

men’s Compensation and that, among other thin

en provid haribo would be 5% of 00000 pe }

month.

‘

“31. The .plaintiff sought and received legal advice from:

said attorneys with respect to whether or not he had an ptiori

‘to sue his employer for damages; that he was advised By said

attorneys that his sole and exclusive remedy was a claim against

the Industria! Commission of Arizona for Workmen’s Com-

__ pensation Benefits unless his employer failed to comply with the .

‘requirements of the Act in obtaining Workmen's Compensation

Insurance, posting of notices or availablity of rejection slips. . -

Said attorneys advised him that he should accept Workmen’s

Compensation Benefits, said advice being given both orally and:

in writing.

“32. After consulting with said attorneys. and on or about

April 23, 1962, plaintiff executed or caused to be executed and

filed with the Industrial Commission of Arizona a document

entitled: “Workman’s Report of Injuries and -Application for

Benefits’.”

The court went on to find that claims had been presented, and peti- +

tioner’ was-paid compensation in a total sum of $4,795.41, and

medical and hospital expense in the sum of $15,246.70. These

findings of the court were substantially supported by the evidence. _

Under these circumstances we do not feel that the ‘court erred in

its conclusion that there had been a waiver. Since the waiver

alone is sufficient, it is not necessary for us to pass upon the other _

matters raised by the ‘petitioner in regard to the jurisdiction of the -

“court, and having decided this case upon its merits it is not neces-

sary for us to pass upon the propriety or the timelessness of the.

filing of the writ of certiorari after the time for appeal has: expired. —

_ Judgment affirmed.

ERNEST W. McFARLAND, Vice Chief —

CQNCURRING:

JESSE A. UDALL, Justice

LORNA E. LOCKWOOD, Justice .

STRUCKMEYER, Justice, dissenting.

The majority, in reaffirming the holding in State v. Siiaiien:

74 Ariz. 412, 250 P.2d 992, have compounded the error initi-

‘ated by the language used in S. H. Kress & Co. v. Superior Court,

66 Ariz. 67, 182 Pac. 931 (1947). The error now results in

N denying petitioner the right to trial by jury guaranteed by Article

“2, § 23 of the Constitution of this state.

‘ PETITIONER’S RIGHT TO SUE

By Article 18, § 6 of the Constitution of Arizona, adopted at

statehood in 1912, employees were guaranteed a right of action

to recover damages for tial injuries suffered during the course

of employment. ete

-“The right of action,to recover nn for injuries shall

fo never be abrogated, * #8.” "Art. 18, § 6, Const. of Arizona.

Of Article 18, § 6, we said:

“Taken ‘into consideration with in receding sections - and -

5, it. is beyond question that the “right of ‘action to recover

.damages for injuries . ’ therein mentioned is the common-

law action: of negligence, *** ” Alabam’s Freight Co. v.

Hunt, 29 Ariz. 419, 443, 242 Pac. 658.

We also said:

“It ‘is urged that this provision siuibien the former common-law

action for negligence a constitutional one, and that it cannot be .

abrogated by the legislature. We think there is no question

' that this proposition, stated in the abstract, is correct.” Moseley

v. Lily Ice Cream Co., 38 Ariz. 417, 420, 300 Pac. 958.

Thereafter, the people of Arizona, in 1925, amended the Con-

"stitution to provide for a workmen’s compensation law.

“The législature shall enact a Workmen's Compensation Law

* * * by which compensation shall be required to be. paid to

any such workman in case of his injury * * * ; provided that

it shal] be optional with any employee engaged i in such private

employment to settle for such compensation, or to retain the

right to sue said employer as provided by this Constitution;

*** ” Art. 18, § 8, Const. of Arizona.

This namibia gives an employee alternative remedies where

the employee has received personal injuries. He has the option to

bring suit against those responsible for his injuries or to take the

benefits conferred by workmen’s compensation: It does not restrict

the right of action to recover damages; it simply gives an injured

workman an additional remedy, the right to take compensation

if he so chooses. | 3 ea Seek Br,

The legislature did enact a workmen’s compensation law. It

recognized and reinforced the. plain language of the Constitution

by providing that it would be optional with.an employee as to

whether he accepted compensation or retained the right to sue

the employer. Laws of 1925, Ch. 83, § 60, now A.R.S. § 23-906,

subsec. A.’ By subsections B, C, D and E of § 23-906, the legis-

*“A. Employers who comply with the provisions of § 23-961 as to

securing compensation shall not be liable for damages at common law or

- by statute, except as provided in this section, for injury or death of an

‘employee wherever occurring, but it shall be optional with employees ‘to

accept compensation as, provided by this chapter or to reject the provisions

of this chapter and retain the right to sue the employer as provided by law.”

-?“B. The employee's election to reject the provisions of this chapter

shall be made by a notice in writing, signed and dated by him and given

. to his employer, in duplicate .in substantially the following form:

‘To (name of employer) : .

You are hereby notified that the undersigned elects to reject the terms,

conditions and provisions of the law for the payment of compensation, as ~

provided by the compulsory compensation law of the state of Arizona, and.

acts amendatory thereto.’ 7 ° ats

“C. The notice ‘shall be filed with the employer prior to injuries sus-

tained by the employee, and thereafter within five diprtes employer shall

file with the commission the duplicate of the notice so served by the ém-

ployee. All employees shall be conclusively presumed to have elected to

compensation in accordance with the terms, conditions and. provisions of

this chapter unless the notice in writing has been served by the- employee

upon his employer prior to injury. — ;

“D. Every employer engaged in the occupations designated.in this

chapter shall post and keep posted in a conspicuous place upon his

_ premises, in all languages spoken by his employees and available for

inspection by all workmen, a notice in substantially the following form:

‘All employees are hereby notified that in the event they do not specifi-

cally reject the provisions of the compulsory compensation law they are -

deemed by the-laws of Arizana to have accepted the provisions of such

law, and to have elected to accept comipensation under the terms of such

law, and that under the terms thereof employees have the right to: reject

the same by written notice thereof prior to any injury sustained, and that

, (Continued on Page 26)

lature provided the circumstances by which the employee signified

his acceptance of the election to take comgeneetion, thus waiving.

the right to sue guaranteed by Article 18, § 6.

It will be noticed that in subsection B the statute uses the word _

“election” and in subsections C and D “elected”. This election is

an election of remedies. — .

“An election of remedies has been defined as the act of

choosing between two or more different and coexisting modes

.of. procedure and relief allowed by law on the same state of

facts. The phrase is also used in a more restrictive sense to

denote the doctrine that the adoption, by an unequivocal] act,

_ of one er two or more inconsistent remedial rights has the

effect of precluding a resort to the others. ” 25 -Am.Jur.2d,

Election. of Remedies, p. 646..

.“An ‘election of remedies is an ‘sili defense. It must be

pleaded. by the party who asserts it and the burden of proof is

~~ om him to establish it.” Kuhl v. Hayes, 212 F.2d 37. And see

Bagwell v. Susman, 165 F.2d 412. .

“But, apart from that, it is not the plaintiff's burden to prove

"that his action is outside the scope of the Workmen’s Com-

Act, N.J.S.A. 34:15-1. Compare Butler v. Eberstadt,

113 N.J.L. 569, 175 A. 159. That would be a mgtter of defense

to be advanced by the defendant.” Dailey v. Mutual Chemical

Co. of America, 125 N.J.L. 465, 16 A.2d 557, Aff'd. 126

N.J.L. 426, 19 A.2d 778.

As an affirmative defense, an election of remedies cannot “a .

raised by a motion to dismiss as was done in the instant case.

Macias v. Klein, 106 Fed.Supp. 107; Southern Farmers Asso. v.

(Continued from Page 25) ~

blanks and forms for such notice are available to all employees at the office

of thiscompany. —

“E. If an employer, fails to post and keep posted the notice as required .

by this section, or ny to P wailable Ad place where the employees

are hired the blank forms notice to be signed by the employee, no

employee who aie engages in employment for such employer,

eee errr are ae One Beane Ge Racing ihe tine dst

are not available, shall be deemed to have accepted the pro-

visions a poner , and it shall be optional for such employee, if injured

when blanks were not available or the notice was not

- sccepe compensation under the provisions of this chapter or

maintain other action agairist the employer.”

Wyatt, 234 Ark. 649; 353 S.W.2d.531; Household Finance Corp.

v. Suhr, 44 Ill.App.2d 292; Vitarelli v. Brunson Const. Corp., 235

App.Div. 804, 256 N.Y.S. 637; Hanover Estates, Inc..v. Finkel-

stein, 194 Misc. 755, 86 N.Y.S.2d 316; Saso v. State, 20 Misc.2d

826, 194 N.Y.S.2d 789; New Hanover County v. Sidbury, 225

N.C. 679, 36 S.E.2d 242. ‘ .

The choice, denominated an election by the statute, is essen-

tially a waivet of the right of action to recover damages for injuries

guaranteed to petitioner by Article 18, § 6 of the Constitution.

The essence of a waiver is that there be an opportunity of choice

between the relinquishment and the enforcement of a right. Ari-

zona Title Guaranty & Trust Co. v. Modern Homes, 84 Ariz. 399,

330 P.2d 113. It is the intentional relinquishment of a known

right. Murphey v. Valenzuela, 95 Ariz. 30, 386 P.2d 78; City of

Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411; In re Brandt’s

Estate, 67 Ariz. 42, 190 P.2d 497; Meason v. Ralston Purina Co.,

56 Ariz, 291, 107 P.2d 224; Southwest: Cotton Co. v. Valley .

Bank, 26 Ariz. 559, 227 Pac. 986. - . ¢

Waiver must be pleaded affirmatively.

“In pleading to a preceding pleading, a party shall set forth

affirmatively accord and satisfaction, arbitration and award, .

assumption of risk, contributory negligence, discharge in bank-

ruptcy, duress, estoppel, failure of consideration, fraud, illegality,

laches, license, payment, release, res judicata, statute of frauds,

statute of limitations, waiver, and any other-matter constituting

an avoidance or affirmative defense. * * *” Rule 8(d), Rules

of Civil Procedure, 16 A.R.S. (Emphasis supplied.) ;

And see Allstate Insurance Co. v. Moldenbauer, 193 F.2d 663; -

Western Casualty and. Surety Co. v. Beverforden, 93 F.2d 166;

Hunter Milling Co. v. Koch, 82 F.2d 735.

The burden of proving waiver is upon the party claiming or

asserting it. Cowles v. Ohio Farmers Insurance Co., 242 F.2d 73;

Buffum v. Chase National Bank, 192 F.2d 58, cert. denied 342

U.S. 944, 96 L.Ed. 702, 72 S.Ct. 558. Waiver is a question of

fact for the jury where the facts are disputed. Cannon v. Travelers |

_ Indemnity Co., 314 F.2d 657; Albert v. Joralemon, 271 F.2d

- 236; Home Indemnity Co. v. Allen, 190 F.2d 490; Ross Engin-

fa)

eering Co. v. Pace, 153 F.2d 35. “The cases uniformly hold that _

questions of waiver are questions of fact to be submitted to the |

jury.” Ross Engineering Co. v. Pace, supra, 153 F.2d 35, 50.

It is, of course, immaterial whether the selection of one or

the other of the options provided in the Constitution, Art. 18,

§ 8, is denominated a waiver or an election of remedies. The re-

Sult is the same.

“An eniployer who contends that he is one of a class of

persons. protected from an action at law by the Workmen's

Compensation Act must plead and prove the conditions neces-

sary to bring himself within the statute. The employee is pur-

suing a common law remedy which existed before the enact-

* ment of the statute and-which continues to exist in cases not

covered by the statute. It is incumbent upon the employer to

prove that the Workmen’s Compensation Act is a bar to the

employee's: ordinary remedy.” Popejoy v. Hannon, 97 Cal.2d

159, 231 P.2d 484.

At this point it might be well to summarize: One, the Con-

stitution, by Article 18, § 6, gives petitioner a right of action to

recover damages for his personal injuries — a right which “shall

never be abrogated.” Two, the subsequent amendment, Article 18,

§ 8, gives him an additional right, that is, a choice between the —

right to sue or to take compensation without suit. Three, the leg-

islative enactment; § 23-906, since it can neither augment nor

diminish the right to sue granted by the Constitution, simply pro-

vides the time when and method by which the election or waiver

of that right is evidenced. And four, the assertion of an election

or waiver by the employer is an affirmative defense not to be

_.. determined on motion, but as any other contested factual issue.

PETITIONER'S RIGHT TO. TRIAL BY JURY

By the Constitution, Article 2,9 23. the people of this state

have provided:

“The right of trial by jury shall remain ray ooo”

‘We have said repeatedly that the Constitution does not give the

right to trial by jury, but its purpose is to guarantee a preserva-

tion of the right. Rothweiler v. Superior Court, 100 Ariz. 37, 410

P.2d 479; State v. Cousins, 97 Ariz. 105, 397 P.2d 217; Brown

v. Greer, 16 Ariz. 215; 141 Pac. 841. Since the Constitution pre-

serves a jury trial in the common-law action of negligence, Ala-

_ bam’s Freight Co. v. Hunt, 29 Ariz. 419, supra, it would seem

_ beyond the possibility of quibbling that Morgan should have had

a jury trial on Metro-Goldwyn-Mayer’s affirmative defense that

he elected to take under the Workmen’s Compensstion Act, .

thereby waiving his common-law action.

“It is fundamental that the California Constitation preserves

to litigants the right.to juty trial as it existed at common law °

in 1850. * * * The legislature may not, directly, or in the

guise of procedural changes or changes in remedy, deprive a

litigant of a jury in a case formerly triable at law. People v.

Kelly, 203 Cal. 128, 133, 263 P. 226. People v. One 1941

Chevrolet Coupe, supra, 37. Cal.2d 283, 299, 231 P.2d 832.”

. Ripling v. Superior Court, 112 Cal.App.2d 399, 247 P.2d 117.

How is it, then, that the majority of this Court now concludes, .

_in the face of such plain, unequivocal, constitutional language

that the question of petitioner’s waiver of his constitutional right

‘of action is to be determined by the trial judge?

The words of Justice Frankfurter, in his dissent to Yonkers v.

United States, 320 U.S. 685, 695, 88 L.Ed. 400, 64 S.Ct. 327,

pent the problem here:

“ ‘Jurisdiction’ competes with ‘right’ as one of the most de-

ceptive of legal pitfalls.”

We have here a simple case in which the petitioner is seeking

- to.exercise his constitutional right but the ny persist in

talking about “jurisdiction”.

_ The Arizona Constitution, Article 18, § 6, speaks of the “ ‘right

of action’ to recover damages.” The right to bring suit to obtain

the relief sought is a°“right of 8 action.” It is the right to pursue

a remedy.

_ “At the risk of being elementary, it is well to define certain

terms — the more so as they have been, ,at times, a source of —

confusion. The right of action is merely the-right to pursue a

remedy.” Yankwich, J., in United States v. - Standard Oil Co.

of Calif., 21 Fed.Supp. 645, 660. .

And see Adams v. Samy, 80 Fed.Supp. 876; Foster v. Humburg,

180 Kans. 64, 299 P.2d 46; Douglas v. Daniels Bro. Coal Co., -

135 Ohio St. 641, 22 N.E.2d 195, 125 ALR. 761; Landry v.

‘ Acme Flour Mills, 202 Okla. 170, 211.P.2d 512; Eastside etc.

Co. v. Southeast Portland Lumber Co., 155 Ore. 367, 64 P.2d

625; Elmo v. Gaines (Tex.), 282 S.W. 835; ae v. Richard-

son, 194 Va. 709, 75 S.E.2d 77. |

The statute does not confuse ‘ “jurisdiction” with the ‘right | to

pursue a remedy.”

'“The right to recover compensation pursuant to the pro-

visions of this chapter for injury. sustained by an employee

shall be the exclusive remedy against the employer, except as

provided by §§ 23-906 * * 4 ” “A.RS. -§- 23-1022. (Emphasis

. supplied. )

It says the right to. recover compensation ee be the remedy.

The error in confusing jurisdiction with the petitioner’s right

to pursue a remedy in the superior court originated in S. H. Kress

‘Co. v. Superior Court, 66 Ariz. 67, 182 P.2d 931. There, a suit

was brought by a minor, age thirteen, against the Kress Company

for his personal injuries. The Kress Company brought a writ of

prohibition in this Court. In the course of the, decision holding

that-a minor could make a valid election, the Court said:

“# * * it is the prime contention of the respondent that in

light of the constitutional provision heretofore quoted, the

child labor laws of our state and sections of our Workmen’s

Compensation Law that the child involved in this case was not

‘ sui juris to make a binding election before injury so as to make

the Workmen’s Compensation Act his exclusive remedy, and

the writ of prohibition in this case should not issue since the

- Superior Court has jurisdiction to hear this case.”

It then said this:

“Statutes direct that the Sup rior Court has -no jurisdiction

to hear this case if the injured boy’s exclusive remedy is under

the Workmen’s Compensation (Act, for the right to appeal is

by statute only * * * and the only appeal given from an award

of the Commission is by Sec. 56-972, A.C.A. -1939: *°* *,.”

66 Ariz. at 72.

This latter statement is meres a non sequitur. The right to

appeal from an award of the Industrial Commission is, of course,

given by statute exclusively to the Supreme Court; but respondent,

as plaintiff in the superior court, was not attempting to appeal

an award of the Commission. He was seeking to invoke a right

of action guaranteed by the Constitution of Arizona, Article 18,

$6, supra. The Industrial Commission, by processing the claim

under legislative acts, could not oust the jurisdiction granted to

the superior court by Article 6, § 14 of the. Constitution of Ari-

zona to hear and determine respondent's case.

“Jurisdiction is the power to decide a case on its merits.” Sil-flo

‘Corp. v. Bowen, 98 Ariz. 77, 402 P.2d 22: It is not dependent

upon the unsuccessful assertion of a defense such as accotd and

satisfaction, contributory negligence, estoppel, failure of con-

sideration, fraud, laches, release, limitation of actions, waiver or

election. These are defensive matters which, if found to be true,

would defeat recovery on a plaintiff's right of action. It would be

an absurdity, to which this Court would not for one moment

listen, were it urged, for example, that contributory negligence,

fraud, estoppel or laches could be raised by a motion to dismiss

and decided by the trial judge without submission to a jury by

the occult device of labeling the issue “jurisdictional”.

In March, 1951, the United States Court of Appeals, Ninth

Circuit, decided Taylor v. Hubbell, 188 F.2d 106. There, it seized

upon the language of the Kress case, saying:

“* * * And where allowance by the commission is the exclusive

remedy of an injured workman the Arizona courts have ‘no

“jurisdiction to hear’ an action for damages. S. H. Kress & Co.

v. Superior Court, 1947, 66 Ariz. 67, 182 P.2d' 931, 934.”

188 F.2d at 108

and concluded;

“Being jurisdictional, these issues [as to whether there had been

an election} were triable to the court not to the j jury.” 188 F.2d

at 109. |

This error was perpetuated the following year in State ex rel.

Industrial Commission v. Pressley, Nov. 1952, 74 Ariz. 412,

250 P.2d 992, wherein this Court quoted from and followed

Taylor v. Hubbell without serious analysis.

; 32

Palpably, there is here no. question of jurisdiction. The matter

_ is as simple as this: If the jury determines the election against

the plaintiff in the superior court, judgment should be. entered

_ in defendant's favor. The determination of whether the exclusive

remedy is in the Commission is just another factual issue to be

. decided as all factual: issues have been: decided from time imme-

morial under the Anglo-American jury. system. .

I cannot acquiesce in this.Court’s disposition of the case. The

_ language of the Kress decision, misapplied in Pressley and now

stubbornly adhered to, whittles away at one of the most valuable

of constitutional rights'so that now a workman of this state may

nat have a jury resolve this dispute with his employer.

I dissent. %

- FRED C. STRUCKMEYER, JR., Justice

I concur in the dissent. 7 :

CHARLES C. BERNSTEIN, Chief Justice

é*

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