S. H. KRESS & CO. et al.
SUPERIOR COURT OF MARICOPA COUNTY
Original proceeding for writ of prohibition by S. H. Kress & Company and Clarence L. Wise against the Superior Court of Maricopa County, Honorable Edwin Beauchamp as Judge thereof.
Alternative writ of prohibition made peremptory.
H. S. McCluskey, of Phoenix (John R. Franks, of Phoenix, of counsel), for petitioners.
Struckmeyer & Struckmeyer and Jack C. Cavness, all of Phoenix, for respondent.
Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., and Henry S. Stevens, all of Phoenix, amici curiae.
Stanford, Chief Justice. La Prade and Udall, JJ., concur.
Stanford, Chief Justice.
[66 Ariz. 68] This matter comes to us on an application for a writ of prohibition sought by S. H. Kress and Company and Clarence L. Wise, who are represented by the regular attorneys for the Industrial Commission of Arizona.
On or about the 24th day of May, 1946, George M. Seivert, by his guardian Frank J. Seivert, filed a complaint in the Superior Court of Maricopa County, Arizona, against S. H. Kress and Company and Clarence L. Wise. The basis for the action was that plaintiff was a minor, age thirteen, and therefore was employed unlawfully by defendant Wise, assistant manager of the defendant S. H. Kress and Company; that defendant corporation unlawfully permitted the said George M. Seivert to work for it; that the employment was negligence per se; and, while so employed, the said George M. Seivert was permanently injured and damages were accordingly sought through a common law action.
Separate answers were filed for Clarence L. Wise and the S. H. Kress and Company, claiming that S. H. Kress and Company was the boy's employer as defined by [66 Ariz. 69] Article 9, Chapter 56, A.C.A.1939, and that the said company had complied with the Workmen's Compensation Law by insuring all of its employees, including the plaintiff George M. Seivert under a policy issued by the Industrial Commission of Arizona, which policy was then in good standing.
The facts further show that at the time of the accident S. H. Kress and Company caused George M. Seivert to be taken to the hospital where all reasonable first aid was furnished and the Industrial Commission provided accident benefits, including medical, hospital, surgical and nursing expense. Thereafter the doctor in attendance made his report to the Industrial Commission; the injured child filed an application with the Commission for accident benefits and compensation, and the boy's mother made application for a change of physicians which was granted, and she ratified and approved the claims for benefits filed. Formal written claims were filed with the Industrial Commission for accident benefits and compensation under the law of Arizona, and the Industrial Commission thereunder paid for the hospital, surgeons, doctors,
nurses, medicines, etc., but before paying compensation benefits, the Industrial Commission required the appointment of a guardian for the said George Seivert by the Superior Court of Maricopa County. Plaintiff Frank J. Seivert, father of the injured boy, was duly appointed the guardian ad litem for his son. However, Frank J. Seivert brought an action in the Superior Court, which is the cause of this application for writ of prohibition at this time, the petitioners for the writ herein claiming that the exclusive remedy of the plaintiff is under the provisions of the Workmen's Compensation Act of Arizona.
The issue, therefore, in this case is whether or not the compensation law is binding on minors illegally permitted to work.
Article 6, Sec. 6, of our Constitution, in part, reads:
"The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; * * *"
Other states as well as Arizona have held that administrative boards and commissions created to administer such as the Workmen's Compensation Act have exclusive jurisdiction to determine all questions of fact and of law, including equitable remedies or defenses as they relate to compensation insurance, or related powers or matters, subject, of course, to the right of review as to whether the commission's orders were supported by evidence. A case from a state whose laws on this subject are similar to the State of Arizona, is the case of Employers' Liability Assur. Corp. v. Matlock, 151 Kan. 293, 98 P.2d 456, 459, 127 A.L.R. 461. The employee in this case was a minor. We quote:
[66 Ariz. 70] "* * * A few inquiries may be helpful. Was it the intent and purpose of the compensation law to cover every phase of the injured employee's right to compensation and the intent to cover completely the procedure for obtaining that compensation? Was it intended to invest in one tribunal, subject to the right of appeal, the right to hear and the power to dispose of every phase and branch of a controversy involving a claim for injuries sustained by a workman in the course of compensable employment? We may state the question in another way. Was it intended the procedure outlined in the compensation act should be substantial, complete and exclusive, or was it intended that parties subject to the act, namely, the workman, employer or insurance carrier might institute ...