Appendix — Morgan v. Metro-Goldwyn-Mayer, Inc.

Supreme Court brief1970

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"ON PETITION FOR A WRIT OF CERTIORARY Sit

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\ INDEX TO*APPENDIX

ae : ee ey i a ; ~ Page

Appendis A ( Péftinent docket entries pox UO Way NaN ee |

Appendix B (3-2 decision and Written dissent of epee

Court of Arizona in Morgan’ v. Hays (1967 » 102, |

Ariz. 150, 426. P.2d wae} Dauaade eset asus ab ceeieeces Pe Le ke

‘Appendix C (vieagh of Court ‘a Appeals of Ati. :

Division One, Dept. B, January 6,-1970, Morgan 1—

/M.G-M, 11 Ariz. App. 223, 463_P.2d T18 C1970), |

affirming: trial court's refusal-of 60(c) motion té°take

evidence and in the alternative new trial) ................ A-24

- Appendix D (Trial court’s pretrial order May 26, 1964) ABN

ores

Appendix E ( Relevant parts ‘of the record )

_ E-f: ‘(60(c) amended and supplemental Aeieion for ©

Naw Trial orf Groundstot Newly Discovered Evi-

*. dence, Fraud, Other Substant tfal Reasons "cars ying

_ Relief) seeks vr es on a eae nae jareunes : A349"

. BS 2 (Form 1 4Q7 ' ‘Application tor Benefits’ ) a 5

E-3 (Affidavit of criminologist Dr. Paul Kirk fegard- .

—& ing forgery of Form C-407) ........ SR ane A:40 ;

E-4, (Portion ot recorded transcript wherein ) State *

claims investigator Jurgemeyer éEnies oftaining

Form: C-407 from petitioner )_ Bed ye Wah eae WL A-42

E- 5 (Portion, of afidavie of Dr. Hand ethoeic|

: surgeon.) te... eT ey sabe nee radiant ee

E-6 ( Confiderftial memorandum froma Mduserial

Commission, of\Arizona chief special agent to .In- -

dustrial Commission of Arizona chief attorney: ~*

=~ : <

Daniels, October Re TPR od oe ei A-4+4

’ - er e-

_ANDEX’ TO APPENDIX. (Gaerineet)

ey, Portion of: ‘afhidavit of ey subte Keouse re i ee:

? petitioner's physical and mental condition ‘and at- wre

tempted bee), Foe Eeeeamuee leash eeeuiews: AAG

E-S (Affidavi it of liadustriaa Commission’ of ree es

chief. referee C. E. Singer, Jr.) BEN ra We lene x A-5O -

g Y (Portion of May 4 , 1967, in inter-office memoran- ,

dum of Jurgemeyer | to chiet counsel admitting, be-, ;

ing secreted without the County under an assumed mr

name duriag hearing ). Spates ib sseenper td ete:

vanere F-1 » (The Seventh Amendment to the Con- .

'. ‘stitution of the United States) !...t2..022001. ee A-52 °-

F-2 (The. Fourteenth Amendnient to fhe Constitu-s -

-thon OF the United Seates) 22... sci teeneene “RG2?

F-3_ (Article 7 $23 of the Arizona Constitution,

Right to oe Tal) ..... sgsetniaaedshcctasenikarngssisekaten “A-52_

' Fe4 (Article . 86 ot the: Arizona” Constitution, re

Right to oo Damages) poke Se ee ye

F-5 (Article "18 .$8 of the Arizona Constitution, :

Right to ‘Common Law pe ile. crite A-53

-F-6 (Arizona Revised Statutes §23-906 Liability an

of Employer at Common Law) ...:............0--- oan OOS

F-7 (Arizona Revised Statutes §23- 1061 Applica- ;

tion. for Compensation ) Se Ritalin Ae) as ae sats

Es (Rule 60(c) Arizona Rules of Civil Pio

| fo > ee One ES Sr wiadietebatigeecds eee er

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_. May

ing

. 13, 1962

- 22, 1963

. 20, 1964

19, 1964

. 30, 1964 ..

19, 1964

A-]

APPENDIX A ;

o DOCKET ENTRIES |”

‘Document :

Complaint hied:- ~ en oy ae

Detendant’ s answer filed |

_ Motion to Sete Certificate *of Peadiness and

Request for Jury Trial filed by. plaintiff

Plaintiff's Motion for Priority trial granted . *

Detendant’s Motion to Dismiss“and for Pre-

liminary Hearing pursuant to Rule 12(d)*

Court order _ granting defendant's Motion for

. Preliminary :Hearing for June 10, 1964, -fur-

ther ordering Pretrial for May 26, 1964, fur: .

9, £967

-, ceed in the Superior Court :

a ee a ie | a

ther ordering trial: of this cause set for June -

"1521964 at 7 30 a.m. in Division 6 to a jury

Pretrial order . x ae

. Trial court’s order ditt detendant’s Motion

to dismiss

_ Findings of. -Fact, Pontus of Law and

~ Judgment.

Motion. for-New Trial on Grounds of Newly

Discovered. Evidence, Fraud, Other Substantial

Reasons Justifying Relief pursuant to amended

Rule 60(¢) A.R.CP. 2a

3-2 written decision ea dissent of the Arizona

Supreme Court, Morgan v.. Hays, supra .

. Application for Relief from Final Judgment on

Grounds, of Newly Discovered Evidence, Fraud.

Other ‘Substantial Reasons . Justifying Relief

“filed in Supreme Court, State of Arizona |

Order denying relief w ithout - judice bo _pro-

: May

July 25,

Jan. 6,

Feb. 19,

rehearing ae ee

March [7, 1970 Arizona Supreme Court order denying petition

~ . td review ‘ ay Be se is ist ae,

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L970; Court: of _Appeals ot Arizona, . aioe One. ,

See A ae \

1967 Amended and ‘Supplemental, Motion” for New

‘Trial on’ Grounds: of Newly Discovered Evi-

detice, Fraud, Other Substantial Reasons Jus-

tifying Relief filed in Superior Cougt pursuant

to Supreme Coyrt order i

. 1967 f 7 rial court’s order: denyi ing ‘plant?’ s Motion for’

New Trial under Rule 60(c) A.R.CP.

”

Dept.. B, vpinion, upholding trial court:

1970. Court of Appeals « ot Arizona . order dknsing

a weeps Pie Z , 7 . 4 : o" a ? : j

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. A ° * c - | fi

Cu ee ROBERT D. MORGAN,

7 . | piace B-

_. IN THE SUPREME COURT OF THE STATE OF ARIZONA

In Banc ‘ o~

Petitioner, -

wa”

VS. - ied

JACK .D.-HAYS; Judge, Superior Coprt of ;

* the State of Atizona, ih and for. the County\ -

of — and said SUPERIOR COURT,

ai ON gS I Nea aa a Respondents,

. and : : ,

‘METRO. GOLDWYN: MAYER, INC.

Real Party i in "| nterest

el ae

ae ; Revi iew by Corcicee’ from the Superior Court’

at et ale ae Honorable Jack D.Hays, Judge

a : AFFIRMED ©”

” SNELL & WILMER é ee “Phoenix

. by Mark Wilmer, PO Rae ,

; . * Attorneys for Petitioner

RICHARD + DANIELS. -. Phoenix.

JENNINGS, STROUSS, SALMON ~ -

i @ TRASK. OU Cw Phoenix =

rats _ by Rex H. Moe ge :

7 > by Rex E. Lee. eu

art 38 : Attorneys for Respondegts

and Real Party in Interest :

seal McFarland, Justice: ie eee

‘Robert .D. Morgan, _hereinatter referred ” to as Petitioner, filed

im a petition with’ this court secking | issuance of a writ of certior ari

et TLE

| respondent, g

to test the propriety of the grapting of. a motion to dismiss by

Jack D. Hays, Judge of the Shperior Court, Maricopa County,

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

peutioner against Metro-Gold vyn- -Mayer, Inc. a Delaware cor:

poration, feal party in interest, hereinafter reterred to as ‘one

Peutioner filed a complaint/in Superior Court, Maricopa punty,

1962, against) 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

Arizona, ‘on December 13,

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

Maricopa County, petitioner was injured rough aegligence of:

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

On April 30, -196-4, MGM,-: through its atkorneys, filed a motion ,

to dismiss under Rule -12, Arizona aoe Civil Procedure,

‘claiming hat the court lacked jurisdiction over the subject mat-

“” the claim for’ relict, and sought an order setting this motion

fo,

preliminary hearing gn the rhotion to dismiss by mindte entry of -

preliminary “hearing to ethe court. Respondent ordered the ~

, May 19, 1964. pies tiled with this court a.petition for writ.

of certiorari on a '964,. secking réliefefrom the order ot

ak a preliminary hearing on MGM's motion to

dismiss for lack off jurisdiction over the subject matter; on -the -

grounds’ that petitioner was entitled to a jury: trial, We denied

this petition by orfier of jung 9, i964. | 7 ‘

Afte?.a hearing) lasting, four days, respondent took the motion

under sdviecedeat and advised. counsel that-hé was declining to

rule upon the juri dictional questions in advance of trial, and that

the jury trial on the issue oftommon law negligence and damages

would proceed. MGM then filed a. -petition for a Ww rit of prayers

with this court. We granted a peremptory writ on June | » 1964, :

~ which oe -d respondent:

. . torthwith.to rule on the matter of - jurisdiction of said’

“court in the above-cntitled matter before proceeding to trial.”

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

A-5

conclusions of law respondent found that petitioner's exclusive

_remedy was vested cither-ii the Industrial Accident: Commission

of the State ot California, or T he Industrial Commission of “Ar

zona, and: * oes . je, eee,

. By, virtue -of the iene conclusions, this Court does -pot °

_ have jurisdiction over the subject matter of this lawsuit and.

therefore the detend: ant’s Motion to Dismiss should be granted

and this cause should be: disnrissed and judgment should be

entered in .favor of the defendant.” eae

The judgment of dismissal for lack’ of jurisdiction w as filed

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

‘ruary 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, Division one, 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 ‘he

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

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

SERS ot the petitioner that the trial Court erred in denying a

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

‘election to take under the Workmen's Compensation statute x. a

preliminary question to be decided by the trial court prior to jury

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

pa a e ; ; ° ; °

-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 tissues presented; therefore, under the procedure that has

been followed in this state for some fourteen yearsethe court

must first determine whether: it-has jurisdiction before trying a

case.

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

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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

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},

court held thay the question of election was one of law .

the trial judge to decide, and: said this:

‘

“It is axiomatic that ' ‘Every ea general jurisdiction has

power to determine whether the Qonditions 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

not made an ‘election under the statute to take compensation,

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

Pd 931. Being jurisdictional, these issues ‘weree triable to

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

them from consideration by the jury . :

‘Wright on Subrogation, supra, pagé 79, section 36, says:

. 'The authority ot 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, , -

; aa te Le

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

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

‘heretofore issued be made préemptory 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 questien of elec-

tionas a matter of law before proceeding with the ‘trial of. the

case on. its merits.” 74 Ariz. at 415, 417, 422; 250 P. 2q at

995, 996, 999 © ? MEPs: :

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

425, 250 P. 2d i) ea LSS eh ee

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

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

"$92. Power and duty to détérmine jurisdiction.

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

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

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

question should be ,considered by the court before it Jooks

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

whether the parties are entitléd to a jury trial if the court has

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

The-rule is also’ set forth in 21° CJS. Courts, J8 113, as

follows: - s ‘ | : |

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

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

inquire into, thé 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. Thg court necessarily

decides that it has jurisdiction by proceeding inthe cause,

" "When at any time. or in arf manner itis reprgsented ‘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 receive testimony ona preliminary question to deter-

mine its jurisdiction, and’is not bound to dismiss the guit on a

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

correctness Of the averment.” 21 C.J.S.cat 174; 175°

ae:

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a ‘ | OF ee

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

the court said:-— - | : | |

“Among other defensts, the: answer of the defendant alleges

as'a’plea in bir to plaintift’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> $ Y7-10.1 of the N.C.

Workmenis. Compensation ‘Act. : ak

“A universal principle’ as old as'the law, is that the procesdings .

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

High v. Pearce, 220 N.C. 266; 17 S.E.'2d 108. If a court firids

at any stage of the proceedings it is without jurisdiction, it is ity — -

duty to take notice of the defect and stay7quash or dismiss the .

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

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

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

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

motion, or ex mero motu, w here the detect of age liction 1s

apparent, stop the proceeding.’ Branch v.-Houston, «4 N.C. B55

“When the trial judge mm-—he-absence of the jury ang rere and’

~decided all questions relating to* the court’s jurisdiction to

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

every tourt ome has inherent judicial power to: » inquire .

Ww ae “f ~ or fact, a ‘decnian ie Ww bic is necessary to

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

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

132 S.E. 2d 18}, 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 deprivgs 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

gaat

{0 the assertion of the right ‘ofthe lngas: whch Sus

: allegedly violated, a presuppe oes pert ‘hs oe x s ie:

” ton to grant the geet sought. The cereus

_ jurisdictional question by-the court 4s Fete 2 denis a

| stittional right of ‘a Kaipant M.a.fary cal. te ny

detekmination of the forum in which those nghss mar rors

be asserted. The decision of the question of whemter ES Ni”

’, "has jurisdictign is a’ preliminary one to ths Secs > on ate

| Merits of the cause. ang is for the court ro dence + 27 $4

2d at B07, SOS ny ie Gat tee a ee

In Adams v. Davison Paxoay C. ompany. 230 $C 232 25 $3 4

| 566, the court stated the same rule: © ~ ea on

“Te has been CONSISTENT) held. that whether che clus A S.

injured workman. i is Wi thin the ‘jurisdicnoa of qh: lacus: ** |

Commission is a matter of law for geasice > TH CoeTT ” 5s

- includes the fin ding of the facts whet telat: eo cuca,

Gece eee ay orn y

“Thus the cria! hai sho Md have in ths cox exiTes. we,

conflicts in the evidence and determined “ pact Senh:

Emporium’ was ‘performing’ a part of the crace. Susces ey

‘ occupation” ot the deparement storsanre! 22 2c. MEST s

wheth§r fespondent’s remedy er. che oe

‘men’s ompens 210n Law Se ia ae

Petitioner rélies most heavily on. _ ase oz by. Bike Rate

Rural Electric Cooperatiye. Inc. | WEG: ls 255

78 S.Cf. 893, in which the Se mw che Ustes Seams

refused to follow the proceduré of the state court 2 Seuss: C

lina: rasa in’ doing ‘so. it is recognized 2 disomemer, —

procedure ‘in. the, ¢ federal “< sdurts and.that in the «sgt =<

which distinction i is spectitcally appheablé in the Stive ina

The Court stated. . :; hee ‘

“We have discussed the problem upen the assevsces- sc oe

outcome of the Iftigation miv bs svdscicc Socaat >

** whether .the 1 issue of immunity is dended 5 cz '

‘ : |

A 10 -"'«

But ‘dearly ere is not present here the certainty that a dit-

ferent result would follewy cf. Guaranty Trust Co. v. York,

326 US. 99, 89 LEd: 2d 2079, 65 S.Ce 1464, 160 A.LR.

% 138]

‘

; supra, or even the strong possibility that this would be?

the case, ct. Bernhardt v. Polygraphic Co- of | Anterica, Inc. °

S50 U.S. 198,. L00: L.EdA+99, 76 S.Ct. 273, supra. There are

‘tactors "present here .w hich might rediice that possibility. The

trial. judge in the tederal-sy sy stem has powers denied the judges

of maay-Stites to comment on the weight: of év idence and

a i

credibility of witnesses, and: discretion to grant.a new trial if

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

Zevidence. We do not think the likelihood of a different: result

tis SO strong as to require the federal practice of jury determina-

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

interest of uniformity of outcome, " 2 L. Ed, 2d at 963, 96-4

We would also call attention to the tact that this was not a

unanimous opinidn, and the dissenting opinion, as” stated by

lusticé,. N‘hittaker, succinctly states why we should not depart

‘trom Pressley, supra. ‘ . ae

It thus seems to be settled inde? the South Carolina Work-

nen’s Compensation Law, ‘and Bags decisions of the highest

_* court of that State construing it, that the question whether

exclusive jurisdiction, in cases lee this, is vested tn its Indus-

trial Commission or {fi ‘tts courts of general jurisdiction is one

tor decision ‘by Pa not dy mn jury. The Federal District

Court, in this diversity case,.is bound to follow the substantive

“South Carolina lew that would be applied-if the trial weré to

be heldlin a South Carolina court, in which State the Federal

District boui sits. Erie R. Co. ¥. . Tompkins, 30-4 U.S. 64, 82

L. Ed. 1188, 58 SCr. 817 »TLALLR. 1485...

* ‘*e: ®.

{We are Paes with a right to recover derived not from

the United States but from one of the States. Wher, because . |

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

forceable, in-a tederal as w Vell as in a State court, the forms and

ee . I,

“-

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=: a a ae %

mode af enforcing the. right may at times, nayirally enough,

vary because the two judicial systems. are not identic ae

L.Ed. 2d at 968, 969° é

Justice Whittaker does not follow’ ‘the reasoning of the majority:

in, holding that the difference in ‘the - hecken allowing the oe

“judges of many States to comment on- the weight of. evidence:

and credibility. of witness, etc:,” as sufficient safeguard against

affecting the substantial rights of the parties,

Petitioner has: also cited a number of Arizona’ cases which he

contends supports his «position, which were decided .prior to’ our

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

ment on these cases, for the members of the court wer® 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

Peg

Mass. 416, 25 N.E. 609 (1890), and Coghlan v. White, 236

Mass. 165,.128 §..£. 33 (1920), dealt with a waiver of the right-

to bring court damages after electing to receive compensation. In

“a more recent case, Nealon b Sullivan, 334 :Mass. 21.3, 13-4 N.E.

2d 886 (1956), the Massachusetts court, in iankiidiae the

question of whether an election 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 court whether such action’ w as authorized. This

quéstion is to be decided by the judge, (Citing cases)" 13.4 N.E:

2d at 889 oe ae eer cit!

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”

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

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

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

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

ad °

7 ae

don of jurisdiction would be sufficient co overcome this objection,

_ intervention might also result in contusion, 1

that petitioner had sek ad waiver under- $2 3-10.24, The court,

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

to whether the tacts in each case would justify such a separate ‘trial.

We have held ~~ in State ex. fel. Industrial-Commission v. Reese,

74 Ariz. 425, 250 P.2d 1001 “— that, the Industrial Commission:

¢ has a right to intervene im a. question of hg. Such -an

the question of

jurisdiction were decided by the jury.

Petitioner also contends that the court erred: in chat the facts

did not-support the court's holding that it did.not have jurisdic tion.

One ot the grounds given by the court below in sO holding was

‘stated: ae ‘ike ate”

» “The i aintitt, by making a claim tor Workmen’ sC Compensation

benefits and continuing to atcept the same with full knowledge

of his legal rights. and With full know ledge of the legal condi-

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

‘or option, t any, which he ever had. to file any claim in this °

Court hs sogiu his employer.”

This conclusion of the’ court W as Supported by its findings of facts:

"29. Following tris sibisiakinns to the- hospital and on or about

_ April 16,1962, plaintiff sought and obtained the legatAdvice

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

particular, consutted, with Mr. ° Frederick K. Steiner, Jr., a

ange and Donald’ Daug ehton, an associate of that law firm.

. On April 16 and again on April 19, 1962, when plain-’

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

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

» the a¢cident’and expressed a strong desire to sue his employer

for what he believed was, their negligence. He advised said .

» attorneys’that. he had signed some document respecting Work-

men’s Compensation and that, among other things, -said docu-

ment: provided that this benefits Ww ould be 65° of $ 1000.00

per month.

“at. The plaintit sought | ed: received legal ‘advice from

"Said attorneys with respect to w hether ar not he had any option §

to suc his eniployer for damages; that he was ‘advised by said

attorneys that his sole and exclusive .temedy was a tlaim against

‘the Industrial Commission of Arizona for: Workmen's Com-

| pensation Benefits unless )4$. employer failed to comply with the ..

requirements of the AcAn obtaining Workmen's Compensation”

Insurance, posting of notices or availablity of rejection slips.

Said attorneys advised him that he should accept Workmen's

Compensation Benciiss, 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 Ww ith the Industrial Cominiision of Arizona a doc ument

entitled ‘Workman’s nape of Injuries and Application fof

Benefits’.”

The: court went on to hed the claims: had been etitahed: gnd

" petitioner was paid compensation in a:fotal.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 bys the

evidence. Under these circumstances we do ‘not feel that the court

"erred in its conéluston that theré had been’a waiver. Since the

waiver alone is sufficient, it is not necessary fo us tO pass upon

the other matters raised by the petitioner in revard to the juris-

diction of the court, and: having decided this case upon its merits

it.is not necessary for us to pass upon the propriety or the time-

lessness of the filing of the writ of certiorari. after the” time for

appeal has expired.

Jud, gment affirmed.

: "ERNEST W. McFARLAND. Vice Chiet adie

CONCURRING: © ~ E cee ee

JESSE A. UDALL, Justice -

LORNA E, LOCKWOOD. Justice |

_—_

STRUCKMEY ER. Justice, dienoanlag.

| Ariz. 412, 250 P.2d 992, have compounded the error initiated

by the language used in S. H. nig & Co. v. Superior Court,

66 Ariz. 67, 182° Pac. Y3T- (1947 _ The error now scueiie in

denying petitioner the fight co trial, ae jury guaranteed by Article

pas Ny 23. of the Constitution .of this state.

2 >. PETITIONER'S sRIGHT TO SUE) 0. 7 ob

By Artic le LS, $6 ot the Constitution of ‘Arizona, adopted at

statehood in 1912, employces, were guaranteed a rigyt of action

to recover damages for personal injuries suffered during the course

°.

of employment. ~~ ° = dp :

“The right of action to recover damages ‘for - injuries shall

never be abrogated; * * *,.” Ade. 18, $ 6, Const. of Arizona.

Ot Article TS, § 6, we said:

/ “Taken into consyderation with the preceding, sections 4 and

” " e e ¥ a e c. ) “oe . - ° ° x j -

5, itis beyond question -that the ‘right of action to recover

damages for injuries . . . ° therein mentioned is the Common:

law’ action of acgligence, * *.* .” Alabam’s>Freight Co. v.

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

“We also said! oF-.h 6 t+, ae ee

“Ie is urged that this provision sakes the former common- Jaw

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

absogatéd by thg legislature. We think there is no question

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

vy. 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 sialon compensation law.

“The legislatuge shall en act a Workmen's Cottipensation Law

any uch workman in case of his injury * * * » provided that

——— a shall be optional with any employce engaged in such private

cmployment to settle for such compensation, or to retain the’

As |

dl .

The majority, in reathrming the holding in State v v. Pressley, ~

Je . > rr

right to Sue said apie as! provided by this Constitution;

raret * 2 Art. 3.8, Const. ot Arizona. a

This inandeebihene? gives an employce ilternative remedies where

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

< bring suit-against those responsible for his i 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 injuged

if he soechooses. "I -“* : a.

- workman an additional remedy, the right fo sak take compensation

The legislature did enact a workmen’s gompensation law. It?

recognized and: reigforced the. plain language of the ‘Constitution ;

by: providirf that it would be optional with an employee as to

whether/he accepted compensation or retained the right tq sue

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

_ subsec. A. ng subsections B, Cc, D and E of § 23-906, “the legis-.

1A Kenekpets who cotenly with the provisions ‘of § 23-961 as to

securing compensation shall gor be liable for damgges at common [gw or

hy statute, except ‘is provided in this’ section, ofr or death of an

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

a compensation as provided by this chapter or to, reject tiie provisions

of this chapter arid retain the right to sue the reais as provided by,

law.” “.

Pits eae en, “a

, ° ner . : 2 : <

2B. The employee's election to reject the peor isions of this chapter .-

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

to his employer, in duplicate 1 in substantially the followi ing form:

‘To (name of employer.) :’

You are hereby notified that the undersigned clects to reject ‘the ternts.

conditions and. provisions of the law for the payment of compensaticn, as

provided by the compulsory ee ensrnc law of the state of Arizona, and ©

. acts amendatory thereto,

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

tained by the employee, and thereafter within five days the employer shajl °

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

ployee. All employecs. shall be conchisively presumed to have elected: to

compensate if 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. - 4

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

chapter shall post and keep posted. in a conspicucis. pl ice “upor his

(Continued on Page A-16) °°

’ .

eo ‘

A-16 ae | ¥?

lature provided the circumstances$® which the employee signified,

his acceptance of the election to take compensation, thus’ waiving.

the right to sue guaranteed by Article 18, S6..

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

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

an.clection of remedies. >

"An election of remedies has been defined as the act ot

choosing between two 6r more different and coexisting modes

“of ptocedure and relief allowed by law on the same ‘state of

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

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

of one or two or more inconsistent remedial rights has the

“eSect of precluding a resort to the others.” ~25 Am.Jur.2d,

Election of Remedies, p. 646. 2... :

“An election of remedies-is an affirmative defense. Ie must be

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

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

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

“Bur, apart from that, itis not the plaintiff's bien: to y prove

3 + my et a es a

AContihied ffom iss A-15)

premises, in all languages spoken by his employecs and avsilable for.

inspecuion by all workmen, a notice-in substantiaily the: following, form:

All gmployces are hereby ‘notified chat in the event they do not speciti-

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

deemed by the laws ‘of Arizona ‘to have accepted the provisions of such

aw, and to have elected to accept compensation under the cerms of such

law, and-that under the terms thereof employces have the right to reject

the same by written-notice thereof prior to afy injury. sustained, and that

blanks and forms” for such notice arc available to all"employces at the «

si this company. +- RS ae

‘If an cmployet fails ter. post, ad keep posted the notice “as required

by te sectfon, 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

employte who thereafter engages in employment for: such employer,

during the time thar the notices are not posted or during the time that

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

, Visions of thts chapter, and it shall be optional for such employee, if -in

jured during the period when blanks were not available or the notice was

Net” posted, to" accept compensation under the provisions mF this chapter of

maintain other action against the employer.” . — ,

| A-17

that his action is outside the scope of che Wciclorann's Com-

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

113 NJ.L569, 175 A. 159. That would’ be a matter of defense

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

Co. of America, 125 N.J.L2 465, 16 A.2d 557, Aff'd. 126

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

As an aftirmative defense, an clection of remedies cannot be

_taised_by a_motion_to-dismiss—as—was—done—in—the—instant—case-——

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

.Wyart, 234 Ark. 649, “35 3 S.W.2d 331; . Household Finance

Corp. v..Suhr, 41 Il App.2d 292; Vitarelli v. Brunson Const.

Corp., 235 App.Div. 804, 256 N.Y.S, 637; Hanover Estates, Inc.

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

20 Misc.2d 826,.194 N.Y.S.2d 789; New Hanovei County v.

Sidbury, 225 NC. 679, 36 S.E.2d 242.

The choice, denominated an élection by. the statute, is essen-

tially a waiver 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. a 82 Ariz. 347,.313 P.2d 411; In ie Brandt's

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

56 Ariz. 291, i 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 sct forth .

affirmatively accord and satisfaction, arbitration and award,

assumption of risk, contributory negligence, discharge in bank-

ruptey, duress, estoppel; failure. of consideration, ‘fraud, -ille-

gality, laches, license, payment, releasé, res judicata, aa te

frauds, statute of limitations, waiver, and any other matter c

A-18

stituting an avoidafice or aflirmative detense. * * *" 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 Go. v. Beverforden, 93 F.2d 166;

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

The burden -of proving waiver is upon the party claiming or

asserting it. Cowlgs v. Ohio Farmers Insurance Co:, 242°F.2d 73;

——— — Buffum—v-Chase-Nationat Bank, 192-¥.2d-58,cert-denied 342

— US. 944, 96 L.Ed. 702, 72,8.Ct. 558. Waiver is a question of

__ tact for the.jury where the facts are disputed. Cannon v. Travelers

| Indemnity Co., 3.14 F.2d 657; Albétt.v. Joralemon, 271 F.2d

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

‘4 sechinig 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.

Te is, of course, immaterial: whether the selection of ome or the

other. of the options provided in the Constitution, Art. 18, $8,

is denominated a waiver or an election of remedies./The result

is the same. | | ; |

“An employer who cgntends that he is one of a class of

persons protected from an action at faw 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 hefore 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. are

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

sutution, by Article 18, $6, gives petitioner a right of action to

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

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

S$, gives him an additional right, that is, a ghoice between the

ALD a

right to sue or to take compepsation without suit. Three, the legis- -

> lative enactment, § 23-906, since it can neither augment ner

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

vides the time when and method by whigh the clection or w aiver

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

or waiver by the emplayer is an .afhrmative defense not to be

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

ar1 rst »

PETITIONER'S RIGHT TO TRIAT. BY JURY

By the Constitution, Articte 2, § 23, the people of this state -

have provided: .

“The right of trial by jury shall remain inviolate, se *

We have said repeatedly that the Constitution does not give the

right to trial by jury;. but its purpose is to guarantée a_preserva-

tion of the right. Rothwéiler 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 Pa€ 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 defénse that

”

he elected to take, under the Workmen's Compensation, Act,

maps waiving his common-law action.

- is fundamental that the California Constitution preserves

to Gaaa the right to. jury trial as it existed | at common law

in $850. * * * The legislature may not, directly, or in the

guise of procedutal 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 C Cal.2d 283, 299,231 P.2d 832..~

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

How is it, theri, 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?

oe A-20

The words of Jusice Frankfurter, itt liis dissent to Yonkers v.

United States, 320 U.S. 685, 695, 88 L.Ed. 400, 6+ S.Ct. 327,

capsulizes the problem here:. |

‘Jurisdiction’ competes with Tight as one of the most decep-

tive of legal pittalls.”

9°

We have here a: simple case in w hich the petitioner is seeking to

exercise his eae aap right but the majority persist-in ta

_ about “jurisdic tion.

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

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

the reliet sought is a “right of action.” It is the right to pursue a

remedy. or =e Ar Taio

“At ie ak ot being elementary, it is well to define certain

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

contusion. The right of action is merely the right to pursue a

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

ot Galit., 21 Fed.Supp. 645, 660. ; : pe

And see Adams v. Albany, | wi Fed. Supp. 876; Foster v. Humburg,

ISO Kans. 6-4, 299 P.2d - - Douglas v. Danicls Bro. Coal Co.f

135 Ohio St. G41, 22 Ce 195, 125 A.L.R. 761; Landry v.

Acme. Flour Mills, 202 Okla.°170, 211 P.2d 512: Eastside ete.

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

625; Elmo v. Gaines (Tex.), 282 $.W. 835; Seymour vy. Richard- sft

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 * we” -A.R.S. $ 23-1022. (Emphasis. ee

" supplied. ) . | |

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

The error in confusing jurisdiction with the petitioner’s right’

to pursuc’a remedy in | the superior court originated in S. H. Kress ;

. , . ‘e ¥

Co. v. Superior Court, 66 ree 67, 182 P.2d 931. There. 5 ag a7

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

for his personal injuries. (The Kress Company bousht 2 emo

_. prohibition ifr this Coutt. In the course of the Ceaser sciggnt

that-a’ minor,could make a valid-eleetion. the Court sxx -

TOR ae ae

it is the: prime. contention of eae aiene Shr ot

light ot the constitut: oral apeigace heretofere quem, =e

'% > _ ~-* : ‘ -:

y+ <*: oan sist = = - -¢ - - - ——

¢—child labor laws-e} State aad SS Se

Compensation Law that the child. involved in this Gs sas at

sul juris to make a binding election before invury & a8 2S Tus

the Workmen's Compensation Act his exclusive 2mecy. in

the writ of prohibition in this case shoule not ‘issue ScUY Ste

Superior Court has jurisdiction to hear this Sas

It chen said shits:

“Statutes direct that the Superior Court has te use

to hear this case if the in; lured boy's ‘exclusive temext

the Workmen's s Compensation Act, for the night's

by statute-only * * * and the only appeal oo

of the Commission is ty Sec. 56-972, ALIA. 1949:,% © *

-66 Ariz. at 72. . —— |

a Vane renee ae

This latter statement is palpably a non sequitur. The mote x

appeal from an award of the Industrial Commissics S$ of Cure

given by statute exclusiv ely to the Si upreme : Const: bar especies

as plaintiff in «the superior court. Was NOt attemMPand sf apes

an award of the Commission. He was seeking fo tyoay 2 Te

of action guaranteed by the Constitution of Atizons. ‘Arocie 7S

-$6, supra. The Industrial Commission. by processing tHe. Sa

under legislative acts, could not‘oust the jurisdamon ctaceeet OLS

_ the superior court by Article 6, $ 14 of the Consmtucée cr Ame

”

-zona to hear and determine respondent's case. \

“Jurisdiction is the power to decide 2 Case On as ences Ste

+] 97 T

Corp.'v. Bowen, 98 Ariz. 77, 402 P.2d 22. Ir is-moe Generders

F : ~ - : . \. . . .

upon the unsuccesstul assertion of 2 detemse such as stom ace

satisfaction, contribugory negligence. estoppel. tarlure Gt Soasces

i ° . .

An? ?

ation, fraud. laches, release, inidatida. ot actions, waiver‘or elec-

? ton. The 'S¢.are detensive mattérs which, if found to be true, would

deteat recovery ona plaintfi’s right of action. It would be an

absurdity, to which this Court would not for one moment listen, —

Were ityirged, ter example. that contributory negligence, fraud,

estoppellor laches could be raised by a4 motion tq dismiss and

vecided | by the trial judge without submission to a jury by the |

occult device of Tabeling the issue “jurisdictional.”

In March, 1951, the United, States Court of ancl Ninth

Circuit, decided Taylor v. Hubbell, 188 F.2d 106. There, it seizeg

upon the language of the Kress case, saying: rs

= & &

And where allowance by the commusstom is the exclusive

’ remedy of an injured workman the Arizona courts have no |

jurisdiction to hear’ an action fpr damages. S°H. Kress & Co.

__\. Superior Court, 19-17 66. Ariz. 67; 182 P.2d 931, 934.”

ISS F.2d ac 108. + 0 =~" ;

and concluded: | 5 ie .

Being jurtsdictronal, these issues fas to whether there had been

an election? were triable to the court not the jury.” 188 F.2d

at 109. . | ‘a

This error was perpetuated the following ‘year in State ex rel.

industrial Commission v. Pressley, Nov. 1952.¢74 Ariz. 412,

280° P.2d 992, wherein this Court quoted from and followed

Tavlor v. Hubbell w ithout serious analysis.

sO-

Palpably. there is here no question of jurisdittion. The matter

is as simple “as this: If the jury determines the election against

che plaintiff in the superior court, judgment should be entered

in detendant s favor. The determination of whether the exclusive

‘remedy is in the C ommission’ 1S rust anather factual issue to be

decided as all factual issues have been decided from time imme-

morial uride? the Anglo-American jury system. - ine

T cannot acquiesce in this. Court’s disposition of the case. The

language of the Kress decision, misapplied in Pressley and now

:bbornly adhered to, whittles away at one of the most valuable,

‘s “AA.

A-23

3 s

-of constitutional rights so that. now a workman of this’ state may

not have a jury resolve this dispute with his employer.

I dissent. . ) a:

2 a _ FRED C.STRUCKMEYER, JR., Justice °

i.”

CHARLES C. BERNSTEIN, Chief Justice

——

"APPENDIX Cc

ROBERT D. MORGAN, Appellant,

v. !

METRO. G OLDW YN- MAYER, INC.,'a Delaware corporation,

Appellee

) No. 1 CA CIV 7.46,

COU RT OF —-! ARIZONA

rar - | =a

Diyisio

Department B.

Jan. 6, 1970.

Richens Hewied Feb. 19, 1970.

Review Denied March 07,287 0.

Chaples M. Brewer, Phoenix, tor appellant. ,

Jenning, Strouss & Salmon, by Rex H. arg! Rex E. Lee,

Phoenix, for appellee.

_ Robert K. Park, Phoenix, for Stare Industrial Commission. *

EUBANK, Presiding Judge. Neo oe

This case ‘is before this Court for the sec: cok time. It was prigi-

~ nally here on appellant's petition: for a writ of certiorari lane

~ Rocket No. | CA-CIV 132, which was denied on April 19, 1965.

. Thereafter the Arizona Supreme Court granted the writ and ren-.

dered ‘an extensive decision on. the merits of the case, which

decision, .as-we will point out, 18 dispositive of quéstions raised)

on-this appeal. This prior decision is Morgan v. Hays and Metro-

Goldwyn-Mayer, Inc. 102 Ariz. 150, 426 P.2d 647 (1967),.

cert. denied, 389 U.S. 859, 88 S.Ct.105, 19 L.Ed.2d -125.41967).

‘It involves the same parties standing in the same capacity as

theysdo 1 in this matter and, upon ina involves the same legal

issues. Se

In the Seeder decision Robert D. Morgan, hereinafter referred.

ty as appellant, sued Metro-Goldwyi-Mayer, ‘hereinafter referred

to as MGM, his employet er, in the Maricopa C ounty, Superior Court

oA tor. damages arising from his personal injuries which allegedly.

resulted from MGM's negligent conduct. MGM moved to dismiss

the complaint alleging that the Superior Court lacked jurisdiction

over, the cause of action by reason of the appellantelecting to take

coverage under the State‘Workmen’s Compensation Act by apply-

ing for and receiving compensation benefits. “At the same time,

* MGM sought an order setting this Lewd for preliminary: hearing

.to the trial court. The trial court grantéd the motion for the pre-

- liminary hefring and appellant petitioned | the Supreme/Court for

a writ of certiorari, alleging that such a hearing deprived appel-

lant of a jury trial on the fact issue “of waiyer. bina writ was’

denied and the hearing was ‘held, after which, the trial judge

advised counsel that he declined to rule on the ‘jusisdictional ques- —

‘tion in advance of the jury trial. MGM then petitioned for a writ

of mandamus in the Supreme Court requesting that the trial -

court be ordered to rule on the jurisdictional question immediately.»

The Supreme Court agreed with MGM and granted a preemptory.

writ ordering the trial court to tule, after which the trial court did

rule and granted MGM’s motion to: dismiss for lack of jurisdic-

tion. The trial court filed: - findings of fact and conclusions of law

in support of its dismissal order concluding that appellant s exclu-

sive remedy was vested either i in the Industrial Accident Commis-

“sion of the State of California, or the Industrial Commission of

- Arizona, and ‘that the trial court had no jurisdiction oter the

matter. : “

Appellant then filed oe notice’ of appeal but failed to file his

cost bond, as required} by Rule 73(b), Arizona Rules of Civi

Procedure, and thereby failed to perfect his appeal. He then ’peti-

tioned this court for a writ of certiorari, which was denied. T

writ. was. subsequently granted by the State Supreme Court and

the Morgan v. Hays decision, supra, resulting from that’ hearing. “

The Supreme Court, in its decision, affirmed the trial court's

judgment ‘of dismissal. For a discussion of that decision,’ see

' Skarecky, Workmen’s Compensation—Election: of Remedies—. .

Question of Election is One of Law to be Decided by Trial Court.

A-26_ : re | e

Morgad, v ~Hays (Ariz. 1967), y Ariz. L.. Rev. 543. In its

‘ opigion the Supreme Court based its affirmance on two grounds:

- First, that a question of election to take under the Workmen's

Compensation statute is a preliminary question da decided by.

the trial court prior to jury trial, which was propefly disposed. ot

liy the trial court; and Second, that the findings of fact of the

‘trial court, on the issue of appellant's waiver to sue MGM’ under

A.R.S. Section 23-1024, were substantially supported * by the

evidence. . . |

— Following the issuance of the mandate, the appellant returned

“to the trial court and filed.an amended and supplemental motion

for New trial! under Rule 60(c), Rules of Civil Procedure, 16

ARS. This motion w ais considered’ and denied by the trial- court

cand phis present appeal results from the denial of that Rule 60(c)

motion. A motion under Rule 60(¢) is addressed to the discretion

of the trial court and the result reached, Sy that court will be ‘sus-

rained on appeal unlless the record on appeal demonstrates a

clear abuse of that discretion. Eldridge v. Jagger, 83 Ariz. 150,

317 P.2d 942 (1957); Haenichen v. plore ala 9 —

App. $3, #49 P.2d 319 (1969).

- Appellant raises three questions on appeal: Fiest, did the trial

court abuse its discretion in denying plaintif’s motion tor.a new

trial pursuant to Rule 60(c¢), Rules of Civil Procedure; Second,

were the-facts shown upon plaintiff's motion for new trial such

as would probably. have changed the result, should a new: trial

be granted; and, Third, w as the appellant required to show due

diligence -in securing the facts and evidence relied upon in his’

motions tor new trial ‘ ;

MGM raises a preliminary question which must be disposed

_ of prior to the consideration of the appellat it’s questions, that

is, Whether the appeal should be. dismissed’ a8 moot because the

prior judgment of the Arizona Supreme Court in Morgan _v.

Hays, supra, is now res judicata and -dispositive of the rights of

! Actually a motion to set aside the judgment

‘ . .

the parties in*this case on the issue raised by ‘the Rule: 60( Cc)

motion, i.¢., fraud. . \

The effect of Rule ee on a mandate from’ the Supreme

Court was considgred by, Judge Molloy, speaking for, Division

Two of this Court in Fins National Bank of Arizona*v. Otis -

Elevator Company, Inc., 8 \riz, App. 291, 293, 445_P.2d 848

(1968), wherein he pointed out that a motion under 60(¢) is

as subject to the doctrine of res judicata as a new action would

be. The same rule. applies under Rule 60(b), Federal Rules of -

Civil Procedure; which is heanien) to Arizona Rule 60(c). In.7

Moore’s Féderal Practice, Sec. Pap Revie P. 339, the federal

tule.is stated thus: yw, 4.

“Where the appeljate court on affirméd or spend: then re-

lief by the district court under 60(b) must reckon with the

appellate: court's mandate. ‘The authorities seem uniform that

a mandate from a reviewing court is controlling as to all mat-

Aers within the- compass of such mandate and as to such mat- ..

ters the District Court, after remand can take no further ac- .

~ tion.’ (Citation omitted). At times a motion for relief wll.

not raise matters that are within the compass of the mandate,

(citation omitted) and in that event the distkict- court clearly

has the power to proceed with the 60(b) motion without leave

of the appellate court. (Citation omitted )..: (Emphasis sup-

plied ). oe, ,

See also 3A Ohlinger’s Federal Practice 418, 420 ‘(Rev. Ed:

1964); Pertin v. Aluminum Co. of America, 197 F. 2d 254 (9th,

‘Cir. 1952); City and County of Honolulu v. United States, 224.’

F.2d 573, (9th Cir. 1955).

The foregoing authorities tequire thatthe application of the

doctrine of res judicata be applied in a Rule 60(c) motion where

a maindate has issued from the Supreme Court, where the same_

parties are involved and w here the same issues are raised. The

exception according 4o Moore, supra, is where, dn: issue: is raised

by the motion which doés not raise matters“within the compass _

of the mandate. See Restatement, Judgments, Section 70 (1942).

’

Ae | . A-28

¢ "Appellant, in effect, claims that a new issue was raised primatily

upon one ground. dlone—fraud..This fraud arises, he says, from

_the alleged torgery er fraud in procuring -the initial Industrial

Commission Form.C-407 ypon which the defense of waiver was

: sustained. This argument fails ‘to fully. examine the extent of

the Supreme Court's decision and mandate in this case: The de-

cision specifically cites Findings of Fact 29, 30, 31, 32 and con-

cludes that, "* * * These findings of the courr were substantially

supported by the evidence. Under these circumstances we’ do not

teel that the’ ¢ court erred in its conclusidn that there had been a

waiver. * * * "Those findings are set Out in a . footnote.” ‘In addi- :

Pi Rk eos Str :

~ . 2Following his admission’ to ‘the hospital and on or about April 16,

1962, plaincitf.soughe and obtained the legal advice of the law tirm of

Sacll & Wilmer, Phoenix, Arizona, and-in particular, consulted with Mr.

4 Frederick K. Steiner, Jes _a_partner, and Donald Daughton, an associate

ae that law firm.

30. On" April Lb tend aaa on Api 19, 1962, when plaintiff was

interviewed by said attorneys while in the hospital, he was lucid and tre-

sponsive and was able to give an account of the accident and expressed

4 strong desire to sue his employer for what he believed yas their negli

gence. He advised sqid attorneys that he had signed some document

respecung Workmer'’s Compensation and ‘that, among other. thingsxsaid

document provided that his benctits would be 65°C. of $1,000.00.

bee : P

. The plaintitt sss he and received lead advice frony said attorneys

with pais to whether or not he had an ‘option ‘to sue his employer for

damagess that he was advised by said attorneys that his sole and exclusive

Temedy was a claim against che Industrial Commisison of Arizona for

Workmen's Compensation Benefits unless his employér failed to. comply

with the fequitements of the Act in Obtaining Workmen's Compensation

‘. Insurance, posting of notices or availability’ of +ejection siips. Said

attorneys advised him that he should accept Workmen's, Compegsstion

Benetits] said addice being given both orally and\in writing.

“32. After consulting with said attorneys and \pn oFabout - April 23,

~ T9GZ_p imtift exccuted or caused to be executed and. filed with the Indus-

—— rr fmmission of Arizona ‘a document entithed“Workman’s Report of

és and -Application for Benctits.” ate

‘The court’ went on to find thar aims had been- presented, and pe-

itioner was paid compensation jf a total sum: of $4,795.41, ‘and medical

ind hospital expense in the sum of $15,246.7Q. These findings of the court

were substantially supposted “by the eVidenee. Under these: circumstances

we do not fecl that the court crred in its conclusion that there had ‘been

(Continued on Page A-29)). 7” a

A-29

tion, findings Nos. 33, 34-and 35 made by the trial court in

support of its conclusion of its lack of jurisdiction must - be

examined in the light of appellant's ” ‘new issuc’” allegation oj

fraud. They are as follows: * yee .

"33. Thereafter and 6n May 23, 1962; June 27, 1962: July

13, 1962; July 20, 1962; July 28, 1962; August -2, 1962:

August 16, 1962; September 1, 1962; September q 6, 1962;

October I, 1962; October 17, 1962; November 2, 1962: —

November 16, 1962; and.December 2, 1962, plaintiff exe-

cuted or ‘caused to be. executed documents entitled “Work-.

man’s Supplemental Claim for Compensation’ and filed or

‘caused thg filing of said'documents with the Industrial Com-

mission of Arizona, knowing and understanding that these

were Claims for’ Workmen's Compensation. _ ‘ a

_ 34, The Industrial Commission ‘of Arizona caused to be

; paid and plaintiff accepted Workmen's Compensation Bene-

fits pursuant to each of the afofesaid .' Workman's Report of

Injury’ and Application for Benefits’ and "Workman's Supple-

mental Claim for Compensation’ under and pursuant to the

provisions of the laws of the State of Arizory for the period

- from April 10,’ en ae November 16, 1962, in the

total sum of $4,795.4 : he) se .

"35. In addition to ‘che aforesaid Workmen's. Compensation

Benefits, the Industrial Commission of Arizona paid or caused

t6 be paid medical and hospital expenses of plaintiff in the

sum of $15,246. 70.” 7

It is true, as appellant allexe’, that the mandate quoted. with

approval a trial court's holding that appellant had made—a

ee — one. da e-

. (Cones ‘ih ag A A-28)

a waiver. Since the waiver alone is sufficient. it isnot nec essary for us

{0 pass upon the other matters raised by the petitioner in regard to thc

jurisdiction of the court, and having decided this ca is¢ DON Ls Merits if: °

IS NYT Necessary for Us tO Pass pon the ptoprics or the tmcliness of «

+ ihe. fling of the writ of certiorari after the time ‘ior appeal has expirce

“Judgment athrnted.” Cat pp. 155-150 of 102 Ariz. at p. 652 of 426

P.2d.) ; eat: . ; ‘ ‘

A-30

“waiver under A.R.S. Section 23-102-1*in these terms: “The plain-

tiff {appellant}, by making a claim for Workmen's Compensa-

tion benefits and continuing to accept the same with full. know!-

edge of his legal rights and with full knowledge of the legal

conditions 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.” (At p. 155 of 102 Ariz., at p.

652 of 426 P.2d). (Emphasis added). However, assuming actual

traud in the procurement of Form C-407, the initial application in

“making a claim’—would this fact alone raise matters which

. would place appellant's motion outside of the compass of the

mandate? We believe that it would not. The decision upon which

the mandate is based goes tar beyond “making” the initial form

C-407 claim, and_ts based primarily upon appellant's personal

knowledge, the legal advice he received, and his continued ap-

plication tor and acceptance of Workmen's Compensation bene-

fits over an extended period of-time and therefore if fraud existed

initially, it is immaterial. Fhe “findings of fact set out herein

sufficiently illustrate this point without further elaboration.

It is our Opinion, therefore, that the allegation of fraud in the

procurement of the original application by appellant does not

raise a new issue outside of the compass of the Supreme Court's

™ mandate, and,-consequently, the doctrine of res judicata applies

‘in this case to the issue of ‘waiver.

Returning to appellant's first question on appeal, it is clear »

that under the compass of the Supreme Court's mandate that the

trial cpurt did not abuse its discretion in denying the Rule 60(c)

smotion. It is equally clear that his second question—that the

facts shown would probably have changed the result if a new trial

were granted—is not supported by the record. Finally, appellant's

- third question, concerning his due diligence in securing the facts

and evidence relied upon, tor his motion, need not be considered

tor it adds nothing one way or the other to the disposition of this

matter. .

" A-31

The judgment of the trial court is affirmed.

HAIRE and JACOBSON, JJ., concur.

A-32

—_ .

APPENDIX D.

PRETRIAL ORDER ‘

A Pretrial.conference was held in the above-captioned , cause |

on the 26th day of May, 1964, at 9:30 o'clock, a.m. with the

following counsel present before the Honorable Jack D. H. Hays,

Judge. of the above-entitled’ court, Division 6: |

_.Mr. Charles M: Brewer representing .the’ plaintiff for Messrs.

Raoul D. Magana and Charles. M. Brewer, attorneys at law.

Me. Rex H. Moore representing Metro-Goldwyn-Mayer, Inc.,

tor Messrs. Jennings, Strouss, Salmon and Trask, ‘Attorneys at

Law.. . on

Mr. Richard J. Daniels, Chief Counsel of the Industrial Com-

mission of Arizona, representing s said Industrial Commission and

Metro- -Goldwyn, Mayer, Inc. . | :

“

Oral. argument was heard on_ plaintiff's nhisctani to inter-

" rogatories and on legal issues regarding defendant's motion to

dismiss. for ‘lack. of jurisdiction. The Court took’ all of said mat-

ters under: advisement. sams) Lal Conference was con-"*

tinued to, May 27,- 1964, at 1:30 o'clock p.m. with the same

counsel present and, in ee Mr. William Jones was also

present on behalf of the defendant. cov 4

IT IS ORDERED that the Preliminary Hearing: [heretofore

set for June 10, 1964, on the. question of defendant's Motion to

Dismiss for want_of jurisdiction was_to pagar to hearing} a

that time without a jury.

The Court further indicated that the question .of jurisdiction

was not to be considered by the jury, and that in the event the

Court denied the defendant s motion to dismiss for lack of juris-

diction, the sole issues to be presented to a jury on June 15, 1964,

or as soon thcreatter as it could be heard, depending on the

length of the. Preliminary Hearing, were the issues ima normal

“negligence ‘case. In. other words, the Court would make a deter-

mination as to all issues of jurisdiction, election, waiver and other

such related matters.

of jurisdiction shall be the burde mn of the defend

A-33! ;

. . , °

IT IS ORDERED that. th burden ot proct es 2 P

Hearing proceedings on defendant's motion io disres °

Thé Court having heretofore overruled planus obecedas

to detendant’s interrogatories, pla untiff was: cradted leave co

file interrogatories directed to the defendant, and the Cetere

hled supplemental interrogatories.

e a ;

IT IS ORDERED thar al! answers to MCECMOLAMOLKS AN J ~

filed not later than June 5, 1964.

‘A general. discussion of exhibits to be saimanciooe was hag asc *

IT. IS ORDERED that all exhibies to. be presented ar the Phe

liminary Hearing or at the jury ” trial must be ae avalahle

r to Ton: c

TO Sena i. - + .

. 2

for examination by opposing counsel prib

IT IS FURTHER ORDERED ‘thar only exception 'to the Fann

going are exhibits which may be Eettemnd for purposes of im

peachment.

_ No ameriilments were proposed at ¢ the Pretrial Hearing

4 s Tack D H Hay

Judge '

_ Copies mailed

to counsel of record.

= , x 34.

"APPENDIX E-|

AMENDED AND SUPPLEMENTAL MOTION

FOR NEW TRIAL ON GROUNDS OF NEWLY

DISCOVERED EVIDENCE, FRAUD, OTHER

‘SUBSTANTIAL REASONS JUSTIEXING RELIEF

(Extended Oral Argiment Requested )

Pursuant to Supreme Court order in cause number 8653.

plaintiff moves the Court to set aside the judgment in the above

_ entitled action, dated January 5.°1965, and to grant a new trial - -

pursuant to amended Rule 60(c), Arizona Rules of Civil Pro-. -

‘cedure, tor the following reasons:

NEWLY DISCOVERED EVIDENCE.

FRAUD.

s. JUDGMENT IS VOID.

i. OTHER SUBSTANTIAL REASONS JUSTIFYING RE-

/ LIEF, WHEREBY THE PLAINTIFF W’AS DENIED -A

~ FAIR AND IMPARTIAL TRIAL IN THAT:

A. His signature was forged to the Arizona Industrial Com-

mission Acceptance of Benefits Form No. 407 “Waiver.” or was

not afhxed thereto by him knowingly and of his own free. will.

“See the affidavit of noted criminologist, and examiner of ques-

tioned documents, Dr. Paul Kirk:) am |

B. Industrial Commission Investigator. Glenn Jurgemeyer,

who purportedly obtained the “Waiver” admitted to Mark Wil-

mer. Charles Brewer, James D. Lester, and Elmer Snow, that he

did not obtain the Waiver. from Morgan” as claimed by de- -

tendant..

‘ See sidswies.) ,

C. That Jurgemeyer, 'a Witness material to petitioner's case,

was purposely instructed by the defendant to hide out of Mari-

copa County under an assumed name from service of process, *

-_*

and caused said'material witness Jurgemeyer to avoid ‘service of

process by petitioner.

we)

Sigs

( See atiidavits and sworn statements. )

.D. That Jurgemeyer did “purposely avoid service of process °

knowing ‘that the petitioner was about to serve him.

(See affidavits of Attorney’ for the Industrial Commission C. =

Singer, sworn statements*of Industrial Commission Investigator.

Jack Newman, affidavit of Industrial Commission Igvestigator

Archie Tufts, and Elmer Snow, former Chief Tavestigator for the

Arizona Industrial Commission. yo .

E. That defendant Metro- Goldwyn-Mayer's auditor, Robert,

Foss, at the time of the preliminary hearing, gave false testimony |

to material facts which were completely at variance’ with a w rit-..-~

ten statement wherein he stated to ‘detendant Metro- Goldwyn-

Mayer through said defendant's insurance co: npgny representative

Tom Malone ‘shortly aftersthe filing of plajntiff's complaint that-

‘defendant did not have rejection slips’ available (as required b

A.RS. $23-906(e), and couldn't swéar as to the posting of signs.

‘However, at the hearing Foss. emphatically testified that signs

“were posted and that*he h ad rejection slips av ailab le. ( See. partial

transcript of record attached hereto. )

F. That plaintiff's counsel. has recently béen ene by coun-

sel for the Industrial Commission: that Jurgemever, if allowed

to testify would testify that not only: was he hidden from service’

of process to avoid testifying but thar if he did testify he would

swear under oath that there were no workman's compensation

signs posted on the job site at any time prior to pipsempamcah S injury.

(See affidavit of Attorney Chiiries M. Biewe

<< That only after. plaintiff's. filing oe 12. i965, ot his

60(c) Motion for Fraud, etc. Jurgemiever, for the first time, in a

statement to the County Attorney's office. on April 2. 1965,

changed his position and claiméd he “now” obtained -the Form

407 “Waiver.” In said statement Jurgemeyer- escent that he *:

did obtain the “Waiver” oa the 23rd dav of April, 196

St ating

that he did so at 10:30 A.M., in the presence of Ne re rouse,

2 and that Mor regan was rational, lucid. aa and a freely

° y ‘

. her testify: at the preliminary /hearing that Morgan

~ rational on or about the 23rd day of April, 196

| 2 OE: _

: IE

with him about lawsuits, negligertce, ctc—this pyfported claim.

is dirametically {sic} opposed ‘to affidavits by th

hospital notes, nurses’ notes, doctors’ notes, ho

prior statements by Jurgemeyer. The attached affidavits of Doc-

tors Willard S. Hunter and Paul. B. Jarrett, coupled with that.

of teaisncved nurse Eunice Krouse, emphatically show, but not

"limited to. the following: ae oe

1. That Jurgemeyer was never in Morgan's room on. that

date.

That iste was physically incapable of signing anything

on that date.

3. That Morgan. was mentally incapable of signing anything

» on that date,

4. That because of his position on a fracture bed ‘a the

fact -that his right eye was sewn shut and that he had

toxemia, bacteremia and septicemia and a necrotic sacrym,

_ perineum and left leg, (which necessitated amputation )

“and that the right leg was raised in traction, all rendered

Morgan too’ weak to even feed himself.

~ That, he was given 325 milligr ams of Dicinieel that day ”

"in four separate shots prior tO. the operation the aftetnoon

of the 23rd day of April, 1962. >

“

(See affidavits of Dr. Hunter, Dr. Jarrett, Nurse’ Eunice _

, Krouse,. attached hereto, incorporated herein and made-

* a patt hereof. ) ;

H. That the affidavi it of Nurse Krouse states tse a me in-°

vestigator _ for the Industrial Commission attempted to ‘have

as lucid. and

that if she

n from the In-

2~ an

would so state, they would pay:her compensatt

substantiatéd by the confidential memorandum from Chief Spe-

‘dustrial Commission of Arizona for so stating. This is further .

h: admitting: the following:

A-37 his.

. .

ar Agent’ Thomas L. Hall to Chicf: Counsel Richard J Daniels -

dated October - 30,° 1964.

( Attached hereto )

I. That Jurgemeyer, the - “now purported olstainer of the

Waiver,” impeached former, Industrial Commission Attorney

Richard J. Daniels and He: id Claims Examiner. Aaron Néfson- by

“] told him of the previous.eve ning es ity and told bime-that

in ‘all probability this had something to do with the MM RC

trial and asked ‘for instructions. He said that he would atte mpt

co get ‘in touch with Mr. Danicls, Chief Counsel and that |

should. ‘call hina in 30 minutes. 1 then. went t@ the vicinity of

3rd- Street and Portland, where I anticipated - would see a

fellow worker, Bill Sawyer. ‘Mr. Sawyer did in fact appear

shortly thereafter; tie recognized me and stopped. We had a

brief conversation and decided to go to the Los: Olivas Restau-

rant tor coftee. At that tine. 1 totd hing that sonicone was look-

ing for me the previous evening and iz all probab 7 ity it bad

to do with the Morgan ous, He then left to 20. to. the office

and [ told him that I had to call Mr. Nelson. We parted. T then ;

proceeded, to the Porterhouse: Motel 1Sth Avenue and Grand.

Upon arriving at the Porterhouse I eahed tare Mr. Nelson,

this was as I recall about 8:00 or 8:15 A.M. Mr. Nelson stated*

‘that he talked to Mr, Daniels and Mr. Daniels instructions

', . were that, for the best interest of the Commission: ] should

proceed to twke the trip to. Casa Grande and vicinity. Without’

hanging up Mr. Sawyer came on the phone. and stated that

he would bring the Casa Grande trip files ¢ toime at the Porter-

~ house, Ww hich he did shortly thereafte fs Afecr having coffee’ with:

Mr. Sawyer, I went: back ‘to my: homie, picked up my. suytcase

and proceeded to Florence.

I worked claims in Florence. Coolidge,’ sand Ca asa Grand

That evening I went to’ Francis¢ oO Gran nde *Hotel out’ of CasaX

Grande “and regastered under an assed. nance. The next’

morning about 11:00*AM I ‘called: Mr. Nelson from a pay

A-38 ° a, ° ”

phone at a service station at the east end of Casa Grande where

2nd Street makes an S turn onto the highway to Eloy. Our -sec-

retary answered with a comment, us I recall “All is forgiven.

. please come home.” 1 then talked to Mr. Nelson. who stated

‘that the trial of Morgan vs. M.G.M. had heen completed.”

( Page 3-4 ot Jurgemeyer's‘aflidavit 5.’4 67 ) : ey

That plaintiff was ignorant of the existence of ‘said evidence

at the time of the preliminary hearing herein, and. that while

said evidence existed at that time, plaintiff could net have sooher

discovered said evidence in the exercise of due diligence.. Said

evidence is not, merely cumulative or impeaching in -¢gharacter,

but is material and of such character and nature that if produced

at the trial, it would probably have resulted in.a different vérdict.

Because of the secreting of material witness Jurgemeyer, of which

plaintiff's counsel] was first‘advised on March 15, 1965, by at-

torney of record, Richard J. Daniels, plaintiff employed Dr. Kirk,

examiner of questioned documents, to examine plaintiff's pur-

ported signature on said Form 407 ' “Waiver.” That as a result ot |

Dr. Kirk's findings of forgery or assisted handw riting, plaintiff's

-counsel reported said variance to the County Attorney's office,

who conducted an investigation and that .said. investigation | re-

vealed the pertinent information contained’ herein which was un-.

available to the plaintiff and while said evidence existed at the

time of the preliminary hearing, plaintiff could not have sooner

discovered said ev idence in the exercise of due diligence. 3

Respectfully submitted.

{Signature of Charles M. Brewer.:

5 _ * Counsel for plaintiff]

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A-40 y

APPENDIX E-3

AFFIDAVIT OF PAUL L. KIRK

STATE OF CALIFORNIA)

| ) ss.

County - of Alameda )

ie PAUL L. KIRK, being first duly sworn upon his oath, deposes

-and says: |

| graduated trom Ohio State University in 1924, ona received

my Master of Science degree from the University of Pittsburgh in

1925, and +eceived my Doctor of Philosophy from the University

ot California in 1927, wherein | have been teaching since 1929,

In 1937, I began teaching criminalistics to date, and in conjunc-

tion therewith, | have worked as a consultant on questioned

~ documents and handwriting sifce 1939; I have written several

papers and portions of books regarding various aspects of ques-

tioned document examination, and in my instruction as a teach-

ing professor in the Department of Criminology at the University

_ of California I teach and direct research in several aspects of dotu-

ment examination. Since 1939 I have testified and @nvestigated

severat “hundred cases throughout the United States in both

criminal and civil matters, including examinations of questioned . ~

_ documents for the United States Army, United States Air Force.

California State Crime Commission, Internal Revenue Service,

and numerous. and sundry banks and insurance companies. In

addition, | belong: to the various technical societies: American

Association for the Advancement of Science, American Chemical

Society, American Society of Biological “Chemists, American So-

ciety of Criminology, California Association of Criminalists

(charter member), [International Association of Forensic Toxi-

cologists (charter member), Austrian Microchemical Society.

(honorary member ),. American Institute of Chemists (honorary

fellow), New York Academy of Science, (honorary fellow),

Koninklejke Vlaamse Academie Voore Wtenschappen, Lettern

En Schone, Kunsten Van Belgie (honorary sng

ba, Se A-41

That on or about the | 7th. day of March, 1965, I was requested

by attorney. Charles M. Brewer of Phoenix, Arizona to examine a

document. which is an Exhibit in the above captioned case, more

specifically known as Workman's Report of Injury and Applica-

tion for Benefits to the Arizona Industrial Comimission of Ari-

zona, Form C-407. That on April: 1, 1965, I came to Phoenix, .

Arizona in order to study the original document in question, in

the Records Room of the Maricopa County Court House. I made

an examination of this docunient, and I have also examined:

numerous and sundry other samples of the handwriting of Robert

D. Morgan, written on various occasions, to obtain the characteris. .

tics of his signature. 3

That I'am of the opinion that the signature at the bottom of

the application for benefits purporting to be that of Robert D ,:

Morgan, contains certain variances strongly indicating that this

was not his spontaneous writing. The handwriting characteristics

-and the stroke of the pen are inconsistent with that of Robert D._

Morgan, in that | examined this original document with. the aid

of instruments brought from my laboratory coupled with the as-

sistance of a high-powered .microscope which reveals that the

signature is not characteristic of his writing, and that there is

strong eviderice existing showing” an. abnormal and | non-spon-

taneous writing.

It is my opinion that the signature on the-original Form C-

407, in the above captioned case, deviates in seriois ways from

* the handwriting of that of Robert D. Morgarr - and these devia-

tions are consistent only with the direct intervention by another

person. who guided the hand of Robert D. Morgan, or alterna-

tively, did the writing independently without’ any participation:

7 Mr. Morgan’ - |

_ | Paul L. Kirk

A-42

APPENDIX _E-1

ee Portion of Recorded Interview

ne * * * * «5

MR. WILMER: Did you see Morgan in the hospital?

MR. JURGEMEY ER: No.

: pte Ker .

MR. BREWER: Then the MGM main could have gotten it?

MR. SNOW: I don’t know how ‘that was handled*out there,

really. When I went on location I always saw that they had

‘all kinds of forms. ; ;

MR.. JURGEMEYER: He was pretty skilled with the bast

ve: quirements Gf the Comemission n=

¥ *€

* SR, STE

‘MR. Wilmer: Well let me ask you this:

It says: beanies claimant. and obtatned form 407.”

This would apepar, at‘least, to.be the report that someone had

contacted the man and gotten the 407?.

MR. JURGEMEYER: Probably I don't know. / don't know.

anything about tt.

* aS

APPENDIX | ES

(Portion ot Affidavit of Dr. Willard 8. Hense:.

* *. * * ae

That | observed Morgan at 9:00 a.m. asd again at TO: 34

on the 23rd because of the ‘condition of his les! aad ck

Sity Of removing the toxic material which ‘he was adsarding

10:30 am. | femoved the wire sutur fes trom tus leg. Th

did not see any claims investigator or any other person

near Morgan at those timés heretofore stata. and ghee

t lease 15 to 20 minutes on “each. of these’ occasions artes

ae Morgan. That 1. heing the sittending pes

_ structed the spectal duty*nurses nét to dea Mv. Morgan 4.

* mewed by anyone or attempt to sign snything of am

_ hind hecause of bjs 6 Cartons Aesags CONARION, Frov: te

of April to the 23 of April Morgan as SHOWING stoN

creased toxicity. 1am of the Splaiow: that be wasn't {

gattonal from five or six days ofter be came dor the

ce Apr: i]. 0, 1Y02 ? } fd ne il lo ne afte: r ; Ir ro Ew? Shi } *) t i se A

.Morgun was constuntly under onivcotics cad dracs forlpn

cf the opinion that the Linge amounts ot demicrol ooo:

Morgan helped place him in a state of Rind of heme com

“ ¢

aull and not knowing what was Boing ond am of the epint>:

that Mr. Morgan wasn't ahleat any tinie from: the 18th + 4.

1962 uwntil the 24th of April, 1962 to kro wher iy

“ing and further. that on the 23rd of April be usc’ pom

capable of signing anything because of his position im os tesctae

bed. and further, that he was weakened with taxcmzic. actor:

_and septicema to such a state that’ he wass't ehle to %, cd £

nor physically vise ont of the bed.

FUR HER AFFIANT SAYETH NOT.”

‘ Willard ne M.D.:..

-W lard unter

. «@

a Si

_A-44

~ APPENDIX E-6 .

ICA MEMO TO

BRIBE NURSE

" Form G:502-A 10M 10-63 |

| MEMORANDUM pa

e | CONFIDENTIAL

LYATE: Qetol ber 30, 1964 .*

RE: Funice J. Krousé Pies, ;

* Claim Nos: AZ, 11555 & -

AZ31202 |

YO: Richard J]. Daniels, Chief Counsel

FR@M: Thomas L. Hall, Chiet Special Agent

These are two similar cases involving: two ditterent findings

Ov the Commission.

The nature ot “the injuries is the same —_ -staph- infection.”

i problen WA) did we ace pt one and ia ny the others = «|

Backer acs: :

, ’ . < “ae ‘

hes nurse ty one of those mvolved m the R.-M. Morgar

MGM) case. She bad admitted upon interview that she had

sued his C413's im that case. At. the same interview I recall’

thar she complained of ‘the amount of compensation paid to her.

‘st iajary). This latter information was apparently relayed |

co the claims department and she was paid $310.29 total in

ampensation and $84.00 in medical.

The second case was denied and timely protested, ‘In both

cases the County Hospital has declined to admit that Krouse was

an emplovee.

- @

Generally. it is telt by the undersigned. that in view, of the

tact that we accepted and paid the first claim, that we should _

so pay the second.

‘omfdentially. ib Was belteved that at we time of a3 Mosgan.

case that her te suman} u ould’ be-of great value. -Howetver,

as decided that it was‘not tobe used. apparently. as 1 have ‘no

¢ .

z - ate *

@ec

| 4 | (* A-45

-turther personal knowledge of -the case. | think that compen-

_ sution was paid on the SMiginal case in order to put her in a

more canperative frame of mind. .

es s. Thomas L. Hall:

‘» ae Thomas L. Hall i

| _ Chief Special Agent

m TLH: ew

a |

\ i

/ +

ind e 7 ee

|: F

a ae |

APPENDIX E-~

AFFIDAVIT

STATE OF ARIZONA, .) |

COUNTY OF MARICOPA ) SS

‘EUNICE. J. KROUSE, being first duly sworn, on oath se ge

and says: ~ °°

That I reside at 28 2» Ww est Palo Sead Drive, deat’ Nave

been a.registered nurse since 1931 and have! practiced for the

past twenty: two years in the State of Arizona; that | attended

Mr. Robert D_ Morgan on the day shitt tor four months. That

my duties as 5 special duty nurse to-Mr. Morgan started on April

16, 1962 and continuously remained with him for four months.

That I have réviewed my nurses notes and that it is my opinion

"that on Apr 23, 1962-Morgan-could not signsbis name to any

paper becuuse.of the: severity, ‘af Ais injurtes .and his toxte con-

dition. That it was necessary to refrain. all student nurses from

coming into his room arid it was frequently Necessary to request

‘ihe help of male ‘orderlies;: that from the time that I first started,

Fabs tor him until tong after the amputation of his leg on May,

1962, he was on massive doses‘of narcotics and tranquilizers.

tae tke Morgan on the 23rd of April, 1962 wasn't able to

‘turn or move becaust¢ of his weakened condition and also being

confined to a fracture bed. That Mr. Morgan was in such a con.

fused state of mind that he would_frequently attempt to. call the

President of the United. States and numerous professional golt

playing friends of his, until we Md to. remove the ~— from.

: room.

"From ny long: ‘years of nursing | am of the opinion that Mr.

Morgan u asn't rational nor lucid nor able to-make any decisions

to determine his le gal rights from: the. 16th day of April, 1962

until-long after the amputation of his leg on May. 5, 1962. Dur.

ing this period of time he was constantly complaining ot pain,

requesting narcotics and necessitating constant medical attention. |

The right side of his face was open, and infected necessitating

hot packs, that his head was lacerated and he was literally scalped.

A-47 eS. ‘

His left leg had loss of much bone, and was, gangrenous and

necessitated being left ,open becasise of the massive infection and

deterioration thereof. ‘That Drs. Johnson, Hunter and Jarrett

attended him daily attempting to cut away the putrified flesh and

maintain a balance, of His electrolite system by the use of steroids.

That Mr. Morgaa was in. extremely poor condition from April

16 to May 5, 1962, that he was suffering from .pxcemia, bac-

tegfna, and septicima. That he had an“extensive wound on the

sacrum and perineum with a compound fracture of the sacrum

which turned the sacrum to his right and a large flap was open.

He also had an extensive soft tissue wound which inv olved the

rectum and anus and some of the sacral nerves on the right

side. There had been -a large foreign body removed from this

area which was taken by the doctors to be a piece of railroad. tie

embeded in the peri-rectoral area; that he had compound frac- °

tures in’ both of his legs with extensive lacerations about the.

face and scalp; that his right eye was sutured shut. That on the

23rd day of April, 1962 it was obvious that Mr: Morgan had.

necrotic _sisgue-—-which had been killed by bacteria ‘in the area

grave and very poor, and that his sii and sacrum ‘area was

; of dead flesh; that Mn Morgan w

sacking and debridment.

unable.to have bowel move- __

to extricate by hand. from his -

severly lacerated ‘and needed constan

ments: which I,“by necessity, h

colon-which w as exposed.

‘That 1 had “been instrifted - thie doctors to og track nf

everyone who came into the room and to not allow any claims

; wd justers. or mi estigutors' to visit with Morgan because of his

obvious toxic condition. That, Mr. Morgan could not ‘control nor *

physically hold a fountain pen nor write on and subsequent to,

April 23, 1962. That it was necessary for-mé to feed him because

of his weakened condition and his inability to feed himself. That

Mr. ‘Morgan was on massive doses of steroids. and that™he was.

quite irrational prior to and on the 23rd day of April, 1962:

That he could hot sign cards of notes, mor write, and it was only

long satter the amputation ~et his leg

‘would assist him to write his name. 1 was reminded hy Dr. ‘Clare.

» ee A448

on May 5, 1962;sthat I

Johnson, Mr. Morgan's plastic si®geon. to make notes of any

gifts.or anyone coming into the roan): that 1 knou’ that no

claims examiner or investigator for. the ‘adustrial Commission

of Arizona canie into Morgan's room on the, 23 day of April.

1962; nor was | approached by one Glen Jurgemeyer purport-

ing to be a clatms investigator of the Industrial Commission of .

Arizona, That Mr. Morgan, prior to the amputation of bis leg.

was being attended by a psychiatrist, that it was necessary for us

‘to sign the 413 claim forms in order for the doctors to be paid.

That there was never-a Form.407 nor any type of waiver form:

ever left with “Mr. Morgan by anyone. regarding the receipt of

That on or near the First ‘of June, 1964, just: prior to the

preliminary hearing regarding Robert Morgan's suit: against.

Metro-Goldwyn-Mayer, an investigator trom the Arizona In-

dustrial Commission came to my house ostensively to discuss

compensation regarding a staphylococcus infection that I received

at.a hospital, ad intimated that if 1 would cooperate with these

pirvestigators that Mr. Morgan was luctd and rational at or near-

the time he was. supopsed to have executéd an acceptance of

of benefits and waive form. that they would assist in approving

m) claim with the Industrial Comrmnussion of Artzona and expe-

dite Same.

That my husband was.also present and when he heard these

investigators of the Arizona Industrial Conimission try to change

my opinion regarding Mre Morgan’s toxicity and irrationality he

became irate and ordered them. off our property. 2

That during. Mg Morgan's Fille. he constantly

spoke of and raved of the negligence | the individual operating

the logs that fell upon him, this individual to’ the best ‘ef my

knowledge was the son of the vice-president ‘of Metro-Goldwyn-

Mayer, and that Morgan was highly incensed because of the

“way the accident happened and confinuousl) spoke of filing «

: o a" 4

cm . e ' | ‘

- A-49

lng’ suit against. Metro-Goldwyn-Mayer and claimed it was his

intentions. as soon ashe got out of the hospital to sue Metro:

Goldu'yn-Mayer for the negligence of their vice-president's son.

FURTHER AFFIANT SAYETH ‘NOT. ;

s/ Eunice J. Krouse’.

"EUNICE J. KROUSE —

4s oa : aaa

l ; a

‘|

aes

\ a

‘ : i: ‘ er:

: <

- ASO . te 3

ee APPENDIX” ES . aly

( Portion ot Afidai it ot Industrial Commission ot Arizona chict

reteree,) $ oe ; “

5 oa e - ~e * B® .s

“Ab-approximately the middle of -March, 1965, athant had <

conversation with Industrial Commission Claims ectigans see

Glenn 3 Jurgemeyer concerning ‘his part’in the investigation in

_connection with the claim of one, Robert D. Morgan v.- Metro-

Goldwyn-Mayer, Inc and The Industrial Commission of Arizona.

thew conversation took place in’ my Commission office at. 1Qh6

dams Street, Phoenix, Arizofa, and at that time Elmers:

-E. Sngw, a former. Claims Reviewer for The Industrial Commis-

stonér was also Sresent. Mr. Jurgemeycr related to Mr. Snow and

- myself that he, Jurgemeyer, had been instructed to avoid process

of service and to remain out: of sight to avoid being —

to testify in the preliminary ‘hearing of Morgan v. M.G.M.

‘Jurgemeyer further stated that on ‘his return home one day

_ during ‘the pendency of said hearing, he observed an aytomobile

parked in front of his residence, and that he-suspected it was a_

process server. That he entered his. house through the rear en-

trance and called his immediate superior, Aaron Nelson, for

instructions; that Mr. Nelson advised Mr. .Jurgemeyer that he.

would call ‘Richard J. Daniels, then Chief Counsel for the Indus-

trial Commission of Arizona, to ascertain what ‘counsel desired

him:to'do; that instructions given*by Chief Counsel. Richard J: as

Daniels. were that Mr. Jurgemeyer wa$ to remain out of sight —

and ‘or leave town to avoid being —— with proce ssfof service

>. . a ail

and to avoid said process at all cost:

" eae si Singer, Jr. Rk S. -

| C. E. SINGER, JR. ’ |

aoe

“ ~ , ee er p ‘

A-51 oe ee

’ . APPENDIX E-9. :

(Portion of interofhce memorandum of. Jurgemeyer ’ to chiet

counsel ) . a re. ‘

: ee ae ew ;

At that tine, 1 told him shat someone was looking for me the

previous evening and in all- probability, it bad My do with the.

, Morgan case. He then left to go to the office and | told him: that

I had to call Mr. Nelson. We parted. I then Wa “eeded to the

Porterhouse Motel 15th Avenue’ and Grand. Udo ‘arriving at”

the ‘Posserhouse I apd Pl Mr. Nelson, this was as I recat]

: *

about $:00 or 815 AM.’ Mr. Nelson stated that he talked to

Mr: Daniels and Mr, Daniels instructions were that. for the best

interest of the Commission, } should proceed to take a trip’

to Casa Grande and vicinit “witha an sin up -Mr.. Sawyer

J. bs 08 P

Grande trip files’ to me at the Porterhouse, which he did shortly

thereafter, 7 ' feos te

Page 4°: bi, aie. May 4, A967

- : f

-To: Mr. Robert K. Park, Chief Counsel

After having coffee with Mr. Sawyer, I went back to my Vote,

picked up my suitcase and proceeded to Florence.

I worked. élaims in Florence. Coolidge, and Casa Grande. Thatt

evening | went to Francisco Grande Hotel out of Casa Grande

and registered under dn assumed name. The next morning about

11:00 AM?I called My. Nelson from a pay phone at a servite *

_ station at the east end of Casa Grande where 2nd Street makes. os

a comment, as. T'‘recall “All is -forgiven, please come home":

I oe tulked to. Mr. Nelson,, who stated that the triaPof Morgan

M. G.M. had been completed. | told hem that } had to work

aa jugh W ednesday in the Casa Grande area.

”

common law.

rs P 3 “A-52 ‘ fe :

Pay aa = oy $

| "APPENDIX: F-1 |

UNITED STATES CONSTITUTION.

AMENDMENT VII. A

In Suits at common law, ww here thé value in controversy shall

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

and no tact tried by a jury, shall be otherwi ise reexamined in any

Court of the United States; than crea 3 to. the tules of the

~. “+ * APBENDIX F:2

AMENDMENT XIV.

- Section |.-All,perséns born or naturalized in the United States,

“and pues to the eueieae es are citizens Gf the United

erson, of lite, liberty, or onibely: without due process of Lay:

ror deny to any person within its jurisdiction the equal protection

of the laws.

APPENDIX F-3_

ARTICLE 2-323. Constitution of Arizona

Section 23. The right of trial by-jury shall remain inviolate,

but provision may be made by yaw for a jury of a. number less

than twelve in courts not of record, and for a verdi€t by nine or

more jurors in civil cases in any court of record, and waiving

“of a jury in civil cases w here’ the consent of the parties interested,

“1S given thereto, = 8

; te he e :

6 ?

, ,

- SF ; .

; \

A-53

APBENDIX. Pe ee 2

ry ARTICLE 18. 6 .Conttitution of Arizona

Section 6. The right of acti mM to recover ‘ddmages for injuries

shall never be gbrogate -@ and the ¢mount recov cme shali- not be

subject. to any statutary limit: ition.

MP MES eS Lge tee ee

ARTICLE, 18 $$ Constitution of Arizona

Section 8. The Legislature shall enacy a Workmen's Céri-

pensation Law applicable. to workmen engaged in manual ‘or

mechanical labor in all public employ ment whether of the State,

or any political sub-division or municipality’ thereof as’ may he

. defined by law and_in such private cmployments-asthe Legistature

* may prescribe by which compensation shall he “required to be

paid to any such workman, in case of his injury: and to his

dependents, as defined by law, in casé of his death, py, his em-

Re if in = conte Oh such Roane Lace injury. to

and i “the course of, such eaeuna is caused *i Je, or

‘in part, or is contributed to, by-a necessary risk or d: iver of of such-_——

employment, or a- necessary_riskor danger inherent in the nature

thereof, or. by failure of such employer; or any, of his or its-agents

any law Gy Bd employment; provided that it shall be

optional with/any employ ee engaged in-any-such priv ate ‘employ-

ment to settfe for such compensation, :of to retain the right to sue

t 8

“”

; ¢ employer as provided by this Constitution; phere

» ~tetain the right to sudhe employer as prov ided by law.

_tef shall be, rhade by a noth

- Pe | rev eon i

APPENDIX F-6 °

| COMMON’ LAW. OF EMPLOYER SECURING o

ai ee COMPENSATION; RIGHT OF EMPLOYEE TO

MAKE ELECTION, PROCEDURE FOR MAK~-*

ING ELECTION ~ NS, se

A. Employérs who comply with the provisions of § : 23-961. as-

to sécuring compensation_shall not be liable for damages at.com-* ~

“mon law or by statute, except as provided in this section, for = ys”.

injury or death ot 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

B. The employee's eledgion to reject the provisions, of this chap-

¢ in writing, signed and dated by hint -

and given to his-cemployer, th duplicate in substantially the follow-

¢ ; a

_ing form: “To (name of employer): — ; et

eo"

You are “hereby “notified thar.the ied ¥ ighod ices to re ject the

terms, conditions ‘and provisions of the*law tor the payment of .

“compensation, as provided by the compulsory compensation law,

of the state of Arizona, and acts amendatory thereto.”

C. The notice shall be filed with the employer prior to injuries -*

sustained by th employee, and thereafter within five days the

employer shall file with the corhmission Sordi ay of the -

all be con!

clusively présumed to have elected to-take compensation in accord-

ance ‘with* the terms, conditions and provisions of ths chapter

unless thg notice in writing has been served by the employee:

notice so.seryed by the employee. «At employees

upon his employer prior to injury. ance ay

D. Every employer engaged in the ecobites designated. | in

this chapter shall post and keep posted in a ‘conspicuous place a

upon his premis¢s, in ‘all languages spoken by_ his. employees

and, available foNinspectic on by all workmen n, a notice in sub- *

stantially the tollows ing.form: —

; Peak we 4 : a eee

Se rent Some

“All employees are “hereby notitied that in the eyent they do . .

not spetifically reject the provisions of the compulsory compen:

sation -law they are deemed by the laws «of. ‘Arizona™to have eee

accepted the ° provisions of such law, ‘and‘ to have elected to | mole

‘ accept compensation under the ‘terms otf such law, and that under

"blanks and forms for sach notice are available to alt employees:

give all necessary assistance in making the applica ign. for ‘com-

the térms théreof cimployces. have the right to _Teject™ the: same.

by- written notice thercof prior to. any mjury sustained, and thac

at the office of this company.. . < Sh . . x of

E. If an employer fails t» post and keep posted the nosice a3 ie mae oo

required by this section, or fails to keep availa ible t the place fo =

where the employees—are ‘hired the blank forms of notice -to be EL

signed by the employee, no employee, who chefcafter engages in / ’

‘employment for-sucl employer, during the time that the norigh “

are not posted or’during the tinje’that the blanks are not gyail-

able, shall “be. deemed to yea accepted the provisions @F this

chapter, and it shall be «Optional for such employee. ‘ith ‘injured

was not t posted, ta accept compensation under: the prov isis. of .

fr action, against thé employer.

this chapter or maintain ot

: \ & ? 4 a

in. eee a

~ APPENRIX F-7 /

$.23-1061 ARS. Applicatio for Compensation.

-A. -An employee entitled to, conffensation shall file with the

_commiés ipa an application there fot together’ with, the certificate

of the. physician’ who attended’ him. The physician, shall inform

the injured employee of his rights under this chapter and shall

pensation and such: proof as required by the rules of the eee eee oe,

mission without charge. i :

i ns, an ey

“on and after midnight Oct, 3h, 1961.

feud Mee

APPENDIX B. 8

# ,

= «

RULE 60(c) ARIZONA RULES OF civit PROCEDURE ’

604c) ; “Mistake; inadvertence; surprise; * excusable neglect;

‘new dy discovered evidence; fraud, etc. On’ motion ‘and upon such

terms as are Just the. court may relieve a party or his legal rep-.

- résentative from a final judgment, order or proceedirig for. the

following. reasons: (1) mistake, inadvertence, Surprise Or excus:

able rieglect; (2) newly discovered evidence which by due dili-

- gence could not have been discovered in time to ‘move for a new

trial under Rule 59¢d)*% (3). fraud (whether heretofore denom- -

inated intrinsic or extrinsic), misgepresentation or other mis-

~ conduct of an adverse party; (4s) the judgment is: void; (5) the

judgment has been satisfied, released or discharged, or a’ prior

:; judgment. on which it is based has been reversed of otherwise

vacated, or it is no longer équitable that the judgment should:

have prospextive application; or (6) any other reason justify-

ing relief from the operation @efthe judgment. The motion shall

be made within ‘a reasonable time, and: for reasons (1), (2 ) and.

(3) not more than six months after the judgment, order or pro--

ceeding was entered or taken, A motion under this subdivision

does not affect’ the finality ‘ofa judgment or suspend its operation.

This rule. . does not limit the “power Of a court to entertain an

indépendent | action to*relieve a party from a judgment, ‘order or

proceeding, or to grant relief to a defendant’ served by publica-

tion as provided by Rule 59(j) or to set aside a judgment for

. fraud upon the court. The procedure for obtaining ‘any - relief

from a judgment shall be by motion as prescribed in’ these rules

or by an ‘independent action. Amended July 14, 1961 Effective |

¢e

eae

‘

ene

’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.