STATE ex rel. INDUSTRIAL COMMISSION
PRESSLEY et al
Writ of mandamus made peremptory.
H. S. McCluskey, of Phoenix, for petitioner; Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel.
Hall, Catlin & Molloy, of Tucson, for respondent Frank E. Pressley.
De Concini, Justice. Stanford, Phelps and La Prade, JJ., concur. Udall, Chief Justice (dissenting in part).
De Concini, Justice.
[74 Ariz. 414] The parties were originally here on an appeal by certiorari from the Industrial Commission, 72 Ariz. 299, 233 P.2d 1082, hereinafter referred to as the first Pressley case. A rehearing was granted, 73 Ariz. 22, 236 P.2d 1011, hereinafter called the second Pressley case.
Pressley, while in the employ of Pioneer Constructors, was injured by a gas explosion in a manhole where he was working. He accepted accident benefits from the Commission but returned its check for compensation. For full details of what occurred see the second Pressley case.
After the decision on rehearing in the Pressley case, Pressley brought suit in the Superior Court of Pima County against the Tucson Gas and Light Co., defendant, as the third party tort-feasor whom he alleged was responsible for his injuries. The defendant answered, denying liability. The Industrial Commission filed a complaint in intervention on the ground that Pressley had no right to sue a third party, (1) because he had made an election to take compensation, [74 Ariz. 415] and (2) that it was therefore subrogated to Pressley's right against the third party defendant. The trial court denied the commission's motion to intervene.
Brown v. De
Concini, J., 60 Ariz. 476, 140 P.2d 224, granted the alternative writ.
The commission's petition seeks to relitigate the issues in the second Pressley case and in addition claims: (1) that Pressley should have sought review by the superior court of the commission's order that Pressley had made an election, and (2) that it was entitled to intervene and be subrogated to all of Pressley's rights against the defendant third party as set out in its complaint in intervention.
Respondent Pressley denies the commission has the right to intervene on the grounds, (1) its complaint fails to state a cause of action; (2) the commission is neither a proper or necessary party and its presence would be detrimental to Pressley because it would introduce compensation insurance into the case.
The matter was fully briefed on all issues in the second Pressley case and is now ready for determination.
Before treating the new matters raised in this action we deem it advisable to first mention that we affirm our decision in the second Pressley case in all respects. To reiterate in part:
1. An injured employee is entitled to accident benefits even though he elect to sue a third party.
2. That an injured employee is entitled to only one recovery for each of accident benefits and compensation; either from the commission or the third party defendant but he must give a reasonable election of the different remedies provided by the constitution and the statutes.
3. Sections 56-949 and 56-950, A.C.A.1939, are constitutional.
4. The commission has no power to decide whether an injured employee has made an election to take compensation but that it is a question to be litigated by the interested parties in the superior court.
The questions to be decided in this case are those of Election, Subrogation, and Intervention. We will treat them in that order.
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 ...