Rehearing Denied Sept. 21, 1954.
[77 Ariz. 411] Udall & Udall, Tucson, for petitioner.
John R. Franks, Phoenix, Robert E. Yount, Donald J. Morgan, and Robert K. Park, Phoenix, of counsel, for respondents.
This is an appeal by certiorari by Ernest Jeune, hereinafter called petitioner, from an award of The Industrial Commission of Arizona and B. F. Hill, F. O. Nathan, and J. J. O'Neill, members of said Commission, hereinafter called respondents, made on February 9, 1954, denying him any benefits.
The facts in the case are not in dispute. Petitioner was injured by accident on June 20, 1952, while working at Tucson for Del E. Webb Construction Company. The employer carried compensation for its employees with the respondent Commission. On August 15, 1952, petitioner filed a negligence action against his employer for his personal injuries, on the theory that the employer had failed to post the notices [77 Ariz. 412] required by Section 56-944, A.C.A.1939. This action was tried in November, 1952, and the Superior Court of Pima County directed a verdict against petitioner on the sole ground that his evidence, viewed most favorably to him, failed to show that his employer had not fully complied with Section 56-944, supra. On January 25, 1954, this court, in Jeune v. Del E. Webb Const. Co., 76 Ariz. 418, 265 P.2d 1076, affirmed the superior court.
Thereafter, petitioner applied to the respondent Commission for workmen's compensation. On February 9, 1954, the Commission entered an 'award' denying petitioner any and all compensation or accident benefits, on the theory that by undertaking his unsuccessful civil action against his employer he had waived any right to compensation.
Petitioner filed but one assignment of error:
'The Respondent Commission erred and acted without jurisdiction in its order of February 9, 1954, denying petitioner any benefits or compensation, for the reason that the civil action previously filed against the employer was dismissed and was a nullity, and for the further reason that said order completely misinterprets and misconstrues the intent and language of Sections 56-950 and 56-944.'
The question before us is one of law only and involves an interpretation of Sections 56-944 and 56-950, A.C.A.1939.
Section 56-944, supra, in so far as is relevant here, provides:
'* * * it shall be optional with employees to accept compensation as provided herein or to reject the provisions hereof and retain the right to sue said employer as provided by law. Such election to reject the terms of this article shall be made by a notice [to that effect] in writing, signed and dated, given by an employee to his employer * * *. Such notice must be filed with the employer prior to injuries sustained by such employee * * *. All employees shall be conclusively presumed to have elected to take compensation in accordance with the terms, conditions and provisions hereof, unless said notice in writing has been served by the said employee upon his employer prior to injury.' (Emphasis supplied.)
Section 56-944, supra, then directs that every employer '* * * shall post and keep posted in a conspicuous place upon his premises * * *' a notice informing the employee as to his rights which are as set forth in the statute above quoted.
Section 56-944, supra, concludes by providing:
'If an employer fails to post and keep posted said notice as required * * *, no employee who shall thereafter engage in employment for such employer, during the time that such notices shall not be posted * * *, [77 Ariz. 413] shall be deemed to have accepted the provisions of this article and it shall be optional for such employee, if injured during said period * * *, to accept compensation hereunder or maintain other action against the employer.'
Section 56-950, supra, in so far as is relevant here, provides:
'* * * Every employee * * * who exercises any option to institute proceedings in court waives any right to any award * * *'.
The question before us is whether an injured employee, who institutes a civil suit for damages against his employer on a theory of negligence but who then has a verdict directed against him on the grounds that he had failed to prove that the statutory notices had not been posted, may thereafter be denied workmen's compensation on a theory of election of remedies.
'Petitioner has misconstrued the nature of the option given to him under the Arizona statutes. He would reason that he is entitled to file suit for the purpose of determining whether or not an option really exists. This of course cannot be true under the Arizona statute which makes the election complete upon the instituting of suit. The Arizona statute has in effect said: 'If you feel that you can prove that the employer did not post notices as required by law, go ahead and file suit and attempt to prove it, but when you file the suit you will have preconcluded yourself from any right to an award from the Commission.''
The language of Section 56-944 is unambiguous. It provides, with one exception to be noted presently, that any injured employee who has not notified his employer in writing of his intention to reject workmen's compensation in favor of suing his employer prior to his injury '* * * shall be conclusively presumed to have elected to take compensation'. The one exception arises when the employer fails to post the notices as required by Section 56-944, supra, in which event the employee retains an option even after injury either to accept workmen's compensation or to sue the employer.
The exception just referred to has no applicability in the present case since the notices were posted by the employer as required. This was conclusively decided, so far as these parties are concerned, in the case of Jeune v. Del E. Webb Construction Company, 76 Ariz. 418, 265 P.2d 1076. See Lauderdale v. Industrial Commission, 60 Ariz. 443, 446-447, 139 P.2d 449; Jones v. Morrison, 24 Ariz. 367, 373-374, 210 P. 472. It follows, therefore, that petitioner '* * * shall be conclusively presumed to have elected to take compensation * * *' as provided by Section 56-944. The language of the statute is subject to no other interpretation.
[77 Ariz. 414] We agree with respondents that once an injured employee has elected either of the two remedies theoretically open to him, he forever precludes himself from pursuing the other remedy. Likewise, we agree with respondents that the petitioner Jeune has made a conclusive election, but his election was to accept workmen's compensation (by fiat of Section 56-944), and was not, as contended by respondents, an election to reject compensation and sue his employer.
The question thus remaining is whether petitioner, having conclusively elected to take compensation, has somehow waived or forfeited that remedy by having subsequently instituted a civil suit against his employer to recover damages for the injury. The case of Gordon v. Amoskeag Mfg. Co.,83 N.H. 221, 140 A. 704, 706, is in point. Plaintiff there, following his injury, accepted workmen's compensation payments for two months. Thereafter he brought a civil action against his employer to recover for the same injury. The action was dismissed because the plaintiff had already accepted workmen's compensation. Plaintiff then applied for further workmen's compensation ...