Morgan v. Hays , 102 Ariz. 150 ( 1967 )

McFarland, Justice:

Robert D. Morgan, hereinafter referred to as petitioner, filed a petition with this court seeking issuance of a writ of certio-rari to test the propriety of the granting of a motion to dismiss by Jack D. H. Hays, Judge of the Superior Court, Maricopa County, hereinafter referred to as respondent, in an action brought by petitioner against Metro-Goldwyn-Mayer, Inc., a Delaware corporation, real party in interest, hereinafter refered to as MGM.

Petitioner filed a complaint in Superior Court, Maricopa County, Arizona, on December 13, 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 picture “How the West Was Won,” being filmed in part in Maricopa County, petitioner was injured through negligence of MGM, and suffered severe injuries as a result of said negligence. On April 30, 1964, MGM, through its attorneys, filed a motion to dismiss under Rule 12, Arizona Rules of Civil Procedure, 16 A.R.S., claiming that the court lacked jurisdiction over the subject matter of the claim for relief, and sought an order setting this motion for preliminary hearing to the court. Respondent ordered the preliminary hearing on the motion to dismiss by minute entry of May 19, 1964. Petitioner filed with this court a petition for writ of certiorari on June 4, 1964, seeking relief from the order of respondent granting a preliminary hearing on MGM’s motion to dismiss for lack of jurisdiction over the subject matter, on the grounds that petitioner was entitled to a jury trial. We denied this petition by order of June 9, 1964.

After a hearing lasting four days, respondent took the motion under advisement. and advised counsel that he was declining to rule upon the jurisdictional questions in advance of trial, and that the jury trial on the issue of common law negligence and damages would proceed. MGM then filed a petition for a writ of mandamus with this court. We granted a 'peremptory writ on June 17, 1964, which commanded respondent :

“ * * * forthwith to rule on the matter of jurisdiction of said court in the above-entitled matter before proceeding to trial.”

By order of June 17, 1964, respondent granted MGM’s motion to dismiss for lack of jurisdiction, and in his findings of fact and conclusions of law respondent found that petitioner’s exclusive remedy was vested either in the Industrial Accident Commission of the State of California, or The Industrial Commission of Arizona, and:

“By virtue of the foregoing conclusions, this Court does not have jurisdiction over the subject matter of this lawsuit and therefore the defendant’s Motion to Dismiss should be granted and this cause should be dismissed and judgment should be entered in favor of the defendant.”

The judgment of dismissal for lack of jurisdiction was filed on January 5, 1965. Petitioner filed, his notice of appeal on February 26, 1965, but the appeal was not perfected by filing within sixty days a bond for costs as required under Rule 73(b), Arizona Rules of Civil Procedure, as amended 1961.

Petitioner then filed a petition for writ of certiorari with the Court of Appeals of Arizona, 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 the question of whether he had made an election to receive compensation under the Workmen’s Compensation Act. It is the contention of the petitioner that the trial court erred in denying a jury trial. This court is committed to the rule that a question of election to take under the Workmen’s Compensation statute is a preliminary question to be decided by the trial court prior to jury trial. State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992.

If petitioner was covered by workmen’s compensation, then his compensation would be determined by The Industrial Commission of Arizona, and the superior court would not have jurisdiction to try the issues presented; therefore, under the procedure that has been followed in this state for some fourteen years, the court must first determine whether it has jurisdiction before trying a case.

In State ex rel. Industrial Commission v. Pressley, supra, we held the question of election to take under the workmen’s compensation statute is a preliminary question to be decided by the trial court prior to trial:

“Is the trial court the proper tribunal to determine whether Pressley has made an election? The answer is Yes. Next, is it 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.

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“In Taylor v.. Hubbell, supra [9 Cir., 188 F.2d 106 at page 109], the court held that the question of election was one of law for the trial judge to decide, and said this:

“ ‘It is axiomatic that “Every court of general jurisdiction has power to determine whether the conditions essential to its exercise exist.” [Cases cited.] Here the district court had jurisdiction 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 P.2d 931. Being jurisdictional, these issues were triable to the court, not the jury. And the district court properly withheld them from consideration by the jury. * * * ’ “Wright on Subrogation, supra, page 79, section 36, says;

“ ‘The authority of the employer, insurer or assignee to prosecute a cause of action under the subrogation statute has been held to be a preliminary question of law to be heard and determined by the trial judge and not an essential part of the plaintiff’s cause triable by the jury.’ ******

“To recapitulate, we affirm the second Pressley case in all respects. We further order, the alternative writ of mandamus heretofore issued be made peremptory and the commission be allowed to intervene; that the commission be allowed subrogation to any and all of Pressley’s rights against the third party for payments made for ‘accident benefits’ received by Pressley; and that the trial judge hear and decide the question of election as a matter of law before proceeding with the trial of the case on its merits.” 74 Ariz. at 415, 417, 422, 250 P.2d at 995, 996, 999

See also State ex rel. Industrial Commission v. Reese, 74 Ariz. 425, 250 P.2d 1001.

In the Pressley case, supra, we followed the general rule, as stated in 20 Am.Jur.2d, Courts, § 92:

“ § 92. Power and duty to determine jurisdiction.

“A court has the power and duty to examine and to determine whether it has jurisdiction of a matter presented to it, its determination being subject, of course, to appellate review. This question should be considered by the court before it looks at other matters involved in the case, and before determining whether the parties are entitled to a jury trial if the court has jurisdiction of the case. * * * ” 20 Am.Jur.2d at 453

The rule is also set forth in 21 C.J.S. Courts § 113, as follows:

Ҥ 113. Power of Court to Determine Its Own Jurisdiction

“Every court has judicial power to hear and determine, or inquire into, the ques- ; tion of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. The court necessarily decides that it has jurisdiction by proceeding in the cause. “When at any time or in any manner it is represented to the court that it has not jurisdiction, the court should examine the grounds of its jurisdiction before proceeding further, the question of jurisdiction being always open for determination. The court may receive testimony on a preliminary question to determine its jurisdiction, and is not bound to dismiss the suit on a mere allegation of lack of jurisdiction, but may inquire into the correctness of the averment.” 21 C.J.S. at 174, 175

In the case of Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806, the court said:

“Among' other defenses, the answer of the defendant alleges as a plea in bar to plaintiff’s action his immunity to suit at common .law by plaintiff in this case and his nonliability under the provisions of G.S. § 97-9 and G.S. § 97-10.1 of the N. C. Workmen’s Compensation Act.

“A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are' a nullity. High v. Pearce, 220 N.C. 266, 17 S.E.2d 108. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit. In re Davis v. Custody, 248 N.C. 423, 103 S.E.2d 503. ‘This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment. * * * So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding.’ Branch v. Houston, 44 N.C. 85.

“When the trial judge in the absence of the jury heard and decided all questions relating to the court’s jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. [Cases cited.] ■

“In Bridges v. Wyandotte Worsted Co., supra, [243 S.C. 1, 132 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 deprives a litigant of no right to a jury trial of the issue of liability because, if the court has no jurisdiction, the litigants have no rights which they may assert in that court. The right to have a jury pass upon the controverted factual issues must of necessity relate to the assertion of the right of the litigant which has been allegedly violated, which presupposes a court having jurisdiction to grant the relief sought. The determination of the jurisdictional question by the court is not a denial of any constitutional right of a litigant to a jury trial, but simply a determination of the forum in which those rights may properly be asserted. The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.’ ” ' 137 S.E.2d at 807, 808

In Adams v. Davison-Paxon Company, 230 S.C. 532, 96 S.E.2d 566, the court stated the same rule:

“It has been consistently held that whether the claim of an injured workman is within the jurisdiction of the Industrial Commission is a matter of law for decision by the court, which includes the finding of the facts which relate to jurisdiction. [Cases cited.]

“Thus the trial court should have in this case resolved the conflicts in the evidence and determined the fact of whether' Emporium was performing a part of the 'trade, business or occupation’ of the department store-appellant and, therefore, whether respondent’s remedy is exclusively under the Workmen’s Compensation Law. * * * ” 96 S.E.2d at 571, 572

Petitioner relies most heavily on the case of Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, in which the Supreme Court of the United States refused to follow the procedure of the state court in South Carolina; however, in doing so, it recognized a distinction in the procedure in the federal courts and that in the state courts' — which distinction is specifically applicable in the State of Arizona.

The Court stated:

“We have discussed the problem upon the assumption that the outcome of the litigation may be substantially affected by whether the issue of immunity is decided by a judge or a jury. But clearly there is not present here the certainty that a different result would follow, cf. Guaranty Trust Co. of New York v. York, [326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231], supra, or even the strong possibility that this would be the case, cf. Bernhardt v. Polygraphic Co. of America, Inc. [350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199], supra. There are factors present here which might reduce that possibility. The trial judge in the federal system has powers denied the judges of many States to comment on the weight of evidence and credibility of witnesses, and discretion to grant a new trial if the verdict appears to him to be against the weight of the evidence. We do not think the likelihood of a different result is so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome.” 78 S.Ct. at 902, 2 L.Ed.2d at 963, 964

We would also call attention to the fact that this was not a unanimous opinion, and the dissenting opinion, as stated by Justice Whittaker, succinctly states why we should not depart from Pressley, supra.

“It thus seems to be settled under the South Carolina Workmen’s Compensation Law, and the decisions of the highest court of that State construing it, that the question whether exclusive jurisdiction, in cases like this, is vested in its Industrial Commission or in its courts of general jurisdiction is one for decision by the court, not by a jury. The Federal District Court, in this diversity case, is bound to follow the substantive South Carolina law that would be applied if the trial were to be held in a South Carolina court, in which State the Federal District Court sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. * * *

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“ * * * [W]e are dealing with a right to recover derived not from the United States but from one of the States. When,. because the plaintiff happens to be a nonresident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic. * * * ” 78 S.Ct. at 906, 2 L.Ed.2d at 968, 969

Justice Whittaker does not follow the reasoning of the majority in holding that the difference in the procedures allowing the “judges of many States to comment on the weight of evidence and credibility of witnesses, etc.,” as sufficient safeguard against affecting the substantial rights of the 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 comment on these cases, for the members of the court were aware of them at the time of the decision in Pressley. We also call attention to the fact that such cases as Boyden v. Lamb, 152 Mass. 416, 25 N.E. 609 (1890), and Coghlan v. White, 236 Mass. 165, 128 N.E. 33 (1920), dealt with a waiver of the right to bring court damages after electing to receive compensation. In a more recent case, Nealon v. Sullivan, 334 Mass. 213, 134 N.E. 2d 886 (1956), the Massachusetts court, in determining the question of whether an election in a workmen’s compensation case should be decided by the judge of 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 was authorized. This question is to be decided by the judge. (Citing cases)” 134 N.E.2d at 889

State ex rel. Industrial Commission 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 jurisdiction 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 question of jurisdiction would be sufficient to overcome this objection, in that it would require delay and determination by the court as to whether the facts in each case would justify such a separate trial. We have held —in State ex rel. Industrial Commission v. Reese, 74 Ariz. 425, 250 P.2d 1001 — that the Industrial Commission has a right to intervene in a question of jurisdiction. Such an intervention might also result in confusion, if the question of jurisdiction were decided by the jury.

Petitioner also contends that the court erred in that the facts did not support the court’s holding that it did not have jurisdiction. One of the grounds given by the court below in so holding was that petitioner had made a waiver under § 23-1024. The court stated:

“The plaintiff, by making a claim for Workmen’s Compensation benefits and continuing to accept the same with full knowledge 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.”

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

“29. Following his admission to the hospital and on or about April 16, 1962, plaintiff sought and obtained the legal advice of the law firm of Snell & Wilmer, Phoenix, Arizona, and in particular, consulted with Mr. Frederick K. Steiner, Jr., a partner, and Donald Daughton, an associate of that law firm. “30. On April 16 and again on April 19, 1962, when plaintiff was interviewed by said attorneys while in the hospital, he was lucid and responsive and was able to give an account of the accident and expressed a strong desire to sue his employer for what he believed was their negligence. He advised said attorneys that he had signed some document respecting Workmen’s Compensation and that, among other things, said document provided that his benefits would be 65% of $1,000.00 per month.

“31. The plaintiff sought and received legal advice from said attorneys with respect to whether or not he had an option to sue his employer for damages; that he was advised by said attorneys that his sole and exclusive remedy was a claim against the Industrial Commission of Arizona for Workmen’s Compensation Benefits unless his employer failed to comply with the requirements of the Act in obtaining Workmen’s Compensation Insurance, posting of notices or availability of rejection slips. Said attorneys advised him that he should accept Workmen’s Compensation Benefits, said advice being given both orally and in writing. “32. After consulting with said attorneys and on or about April 23,1962, plaintiff executed or caused to be executed and filed with the Industrial Commission of Arizona a document entitled ‘Workman’s Report of Injuries and Application for Benefits’.”

The court went on to find that claims had been presented, and petitioner was paid compensation in a total sum of $4,795.41, and medical and hospital expense in the sum of $15,246.70. These findings of the. court were substantially supported by the evidence. Under these circumstances we do not feel that the court erred in its conclusion that there had been a waiver. Since the waiver alone is sufficient, it is not necessary for us to pass upon the other matters raised by the petitioner in regard to the jurisdiction of the court, and having decided this case upon its merits it is not necessary for us to pass upon the propriety or the timeliness of the filing of the writ of certiorari after the time for appeal has expired.

Judgment affirmed.

UDALL and LOCKWOOD, JJ., concur.