# Appendix — Morgan v. Metro-Goldwyn-Mayer, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0233%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 400 U.S. 902 ## Text “LIBRARY... SEES wIA c REME COURT, uv. sit =: uk ROBERT D. MORGAN, Soee cs ape Conserv ua dagsies = ee ee "a Delaware corporation, "ON PETITION FOR A WRIT OF CERTIORARY Sit "TO THE COURT OF APPEALS OF °/ ("°. . __ THE STATE OF ARIZONA = See Bae >] Ag . ot | oe! . J . ° : vane CS ae An wyrn bp eb bang \ CA oserr™ > hs . pi . . > iJ * . ¥ . 4,@ * ‘ . ’ »* es & . * * #4 3 e@« > ° rs . . o = . oe a , ’ es NX z¢ Bene -. ¢ ° ? .] » a . » : tA ‘ . . ne >! ‘ c * " by e e % « ' * bg ‘ x, « 4 . =, - « * ; “ Se . x ‘ ‘ % 4 4 * ’ ?. ‘ f BY Bie Pe tid . - re ; . a . Ee . A ‘ its rg, ag } f es ot" . j . ° . 7 ‘ - oH gt ‘ . ‘ : y - Hes 7 t f 4 * : e é« . . oe , be a xs 4 pte i * J . an y phate, Hf 4 Wee aes se . | "es a . "~ 4 ti - ¥ ; ‘ : Fal - Mam 7 \ A 7 ss Cas aa . \ 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: ~* =~ : ee One ES Sr wiadietebatigeecds eee er Cs * _. 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- = a : 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, ‘ f G : pes ne ® bis Fy, 4 . no ¢ yf ‘5 . “ f - - ° : ‘ Pp ; " ; Par “ e y « | ‘ é é ~ \ . e ‘ 2 ba . { : - \: ° A ; © 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 : ahh 4 ; va - 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 es \ 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.” © By order of June 17 196: 4, respondent grarited MGM's motion 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 bd ° ¢ al “6° AG “ ? ¥ ‘ 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 . . o 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: N foe A-8 ~ ir \ 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 Q 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 “ ** 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, “- v r AzIL =: 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 ° a 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. ~ a “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 * © * by which compensation shall.be required to be -paid to 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 | im 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 "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.” . — , ~ . es | 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. ae 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. ye 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? ¥ a 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+ 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. nr 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 “ (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] . 8 - . - ’ ae > . i ee a: ‘ 4 ¢ * 4% \ ‘ . . \, ° e a al ° : . . “ . . . nag 2 eva: : Pe ea es : : ~ onal = 4 Re . ° - , : P . 7 =f sf j a ss 7 oe vias s .- .. 2 e . . b , 4 hai Fes a> . * . ° 7 *. Ps -f ° ; “ag . ws . . . ‘ _ @ 3 . Z od . = . sd ¢ . . 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NVAUOM ee 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 4 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’ - | j | /s. Paul L. Kirk © _ | 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. 7 o ¢ * 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: : , ’ . . . 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] hy : * 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 an $ turn onto the highway to Eloy.-Our secretary answ ered with © 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. A ” 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. ce 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 f 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 or seitods or employees to exercise due care. or to comply with © 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 ° S 23-906, LIABILITY © UNDER CHAPTER © “OR UNDER.” | | 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.. . 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 | - ew ¢e re i eae J ‘ ene f ’ a » . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0233%3A1. Public record. Not legal advice.