The copper era and Morenci leader., 1914-04-03
LIABILITY LAWS OF zONAUPHELDBY
 SUPREME COURT

Justices Hand Down Decision that In-
 jured Employe May Sue Under Com mon Law.
 PHOENIX, March 1S.-Arizona's compulsory compensation and en- ployers' liability laws are legal. When an employe is injured he has his choice of bringing action to obtain redress under either of those statutes or under the common law.
 Such is the opinion of the supreme court, delivered in upholding the judg- ment of the Superior Court of Yavapai in the case of John Ujack versus the Consolidated Arizona Smelling com pany, of Humboldt. The company ap- pealed from that judgment and pro- bably will take the matter to the Su- preme court of the United States. Chief Justice Alfred Franklin wrote the Arizona Supreme Court decision, which was concurred in by Justice H. D. Ross Justice Cunningham wrote an opinion dissenting in part but con- curing in the result.
 1 Following are some pertinent ex- tracts from the majority opinion: Under the law of Arizona an em- ploye who is injured in the course of his employment has open to him three avenues **They are:
 q. The common law liability re- lieved of the fellow servant defense and in which the defenses of contri butory negligence and assumption of risk are questions to be left to the jury.
 "2. Employers liability l-v vrich applies to hazardous occ1pa, ons where the injury or deat' :s not caused by his own negligence.
 60 The c0n1nu1SOrV cOmnRnSatiOn law, applicable to especially danger ous occupations, by which he may re- cover compensation without fault up on the part of the employer.
 Prior to the adoption of the con- stitution an employe who had suf- fered an injury, or his personal repre- fsentative in case of death, had but one remedy-the common law liability with all it's defenses of fellow servant, contributory negligence and assumed risk.
 "The constitution declared for this state different and more advanced as well as human public policy one in common with the present day en- frightened thought and conscience, by providing for the employers liability and compulsory compensation in all hazardous or especially dangerous employmentS.
 "The appellee contends that he was entitled under the facts of the case to maintain his suit for personal in jury under the employers liability law, while the appellant insists that his exclusive remedy was to be found in the compulsory compensation law.
 ''The conrtoverted question may be disposed of by correct asnwer to this question. Does the compulsory compensation act, when. not disaf- frmed prior to injury, limit the rem edy of the injured employe to the con- pensation provided in that act, or may he after the injury elect between his remedy under the act and the other remedies of the common law liability and employers liability?
 ''The appellee was in the employ ment of appellant at the time the feet and had been in such employ ment for more than ten days there after when he was injured. Neither the employer nor the employe has taken any affirmative action in rec cognition of the Iaw- either to approve or repudiate it.
 "***When conflicts occur between the constitution and the statutes the latter must give way. If the consti- ution makes the compensation ob1i
  as to the empIoye, to be exercised after the injury, that is the end of it. The constitution says ''the legislature shall enact a workmen's compensation law by which compulsory compensa- tion shall be required to be paid to any such workman by his employer ***Provided, that it shall be optional with said employe to settle for such compensation or retain the right to sue said employer as provided by this constitution. This mandate to the legislature was carried out i'll the en- acting of the workmen's compulsory compensation law and in so doing there was created a new civil action heretofore unknown to our laws avail able to the employees injured. It is optional with the injured empIoye as to whether he will accept the con- pensation. The employees right to exercise this option being a constftu- tiona1 right, legislation is importent to deprive him of it. The legislature can of any injury or the accural of any right, which remedy he will pursue for redress.
 Therefore any expressions in the workmen's compulsory compensation act that seemingly require that the employe shall elect, in advance of in- jury, his remedy for redress, should be read, and construed in view of the constitutional provision permitting him to exercise his option after the injury either to claim compensation or sue for damages