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Jeune v. Del E. Webb Const. Co.

Supreme Court of Arizona

January 25, 1954


Page 1077

[76 Ariz. 420] Udall & Udall, Tucson, for appellant.

Darnell, Robertson, Holesapple & Spaid, Lawrence V. Robertson, Tucson, Jennings, Strouss, Salmon & Trask, Charles L. Strouss, Clarence J. Duncan, Phoenix, for appellee.

PATTERSON, Superior Court Judge.

This is an appeal by plaintiff-appellant from a directed verdict and judgment entered against him in the superior court of Pima County denying him any relief on his claim for personal injuries. On June 20, 1952, Del E. Webb Construction Company was constructing a warehouse in Tucson, Arizona, to be used in connection with the erection of a housing project in the same vicinity. That afternoon a strong whirlwind caused the warehouse to collapse while appellant, a carpenter-employee of appellee, was working thereon causing him to suffer serious injuries.

After the injury appellant executed the usual injury and compensation claims for compensation and medical benefits which were filed with the Arizona Industrial Commission. Several weeks after the execution and filing of the claims, appellant interviewed his attorneys. Thereafter he brought this action upon the ground that he was entitled to bring a common-law negligence action for the injuries sustained for the reason that appellee had failed to post, in conspicuous places, the workmen's compensation notices required by section 56-944, A.C.A.1939. Such an action is proper if appellee failed to post the notices hereinafter referred to in the statute. Corral v. Ocean Accident & Guarantee Corporation, 42 Ariz. 213, 23 P.2d 934.

Section 56-944, supra, provides in substance that employers who comply with [76 Ariz. 421] the provisions of 'section 1422 (§ 56-932)' shall not be liable to respond in damages at common law or by statute, provided they post at least one notice in a conspicuous place on the premises in all languages spoken by their employees and available for inspection by them notifying said employees that in the event they do not specifically reject the provisions of the compulsory compensation law prior to any injury sustained by them they will be deemed to have elected to accept the provisions of such law and to accept compensation under the terms thereof. And that said employees have the right to reject the same by written notice prior to such injury.

In the event the employer fails to keep posted such notice in the manner prescribed, no employee who shall thereafter engage in employment for such employer during the time such notices shall not be posted shall be deemed to have accepted the provisions of the workmen's compensation law and in such event it is optional for such employee, if injured, to either accept compensation under the act or maintain an action against the employer based upon common-law negligence.

Appellant's principal assignment of error is as follows:

'The trial court erred in directing a verdict and denying plaintiff's motion for new trial, both of which orders were necessarily predicated solely on the court's determination that plaintiff had adduced no evidence from which reasonable men could conclude either:

'1. That during plaintiff's employment prior to his injury the workmen's compensation posters required by section 56-944, A.C.A.1939, were not posted at any place on defendant's premises; or

'2. That if posted the said posters were not in conspicuous places for the reason that the plaintiff had adduced competent and legally sufficient evidence from which reasonable men could properly conclude that the said posters were not posted at all, or in

Page 1078

any event were not posted in conspicuous places as required by said statute.'

The important issue to determine in this appeal is whether appellant submitted any competent evidence that entitled him to go to the jury upon the ground that defendant-appellee failed to post a notice as required by the statute. This in substance covers the principal assignment of error and proposition of law designated by appellant except as to admissibility of certain evidence which will be considered later.

In considering a motion for a directed verdict the trial court must be guided by accepted principles of law enunciated by this court in many cases to the effect that if plaintiff's evidence and all reasonable [76 Ariz. 422] inferences therefrom considered, as it must be, in the strongest light against the defendant, were sufficient to support a verdict the motion was properly overruled.

'* * * It is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set it aside, that the court is justified in directing a verdict. * * *' Arizona ...

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