Baldwin v. Byrne

• Decision Date: 07 February 1939
• Docket Number: 2105
• Citation: 53 Wyo. 519,86 P.2d 1095
• Parties: BALDWIN, STATE TREASURER v. BYRNE ET AL
• Court: Wyoming Supreme Court

86 P.2d 1095

53 Wyo. 519

BALDWIN, STATE TREASURER v. BYRNE ET AL

No. 2105

Supreme Court of Wyoming

February 7, 1939

APPEAL from the District Court, Goshen County; SAM M. THOMPSON Judge.

Proceeding under the Workmen's Compensation Act by Lillian B. Byrne claimant, as widow of Ernest E. Byrne, deceased, employee opposed by L. F. Ashburn, employer. From an award of compensation in favor of claimant, J. Kirk Baldwin, State Treasurer, appeals.

Affirmed.

For the appellant, the cause was submitted on the brief of Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General; and Wm. C. Snow, Assistant Attorney General, of Cheyenne.

The petition of claimant alleges facts creating a legal liability in a third person, and under Section 124-109, R. S. 1931 no liability attached to the employer. Baca, the Mexican who caused the death of claimant's husband, was convicted of the crime of involuntary manslaughter under a Colorado statute. Claimant's remedy is by a suit at law against the third party who caused the accident and death, and in case of an adverse judgment, claimant could then receive an award. Weber v. Chicago & N.W. Ry., 278 F. 258. Section 124-109 is sui generis. Decisions from other states on liability of a third party are not in point. The compensation act does not take away the remedy of the employee at common law against a third person. Article 10, Sec. 4, Wyoming Constitution; Secs. 102 and 103, W. R. S. 1931; Weber v. Chicago and N.W. Ry., supra; note 19 A. L. R. 766. The trial court erred in granting an award for an accident which occurred out of the State of Wyoming. The Act does not operate extra-territorially. Accidents must be reported at the office of the clerk of the District Court of the County where the accident occurred. Secs. 124-112, 113, R. S. 1931. This statute discloses the legislative intent to provide for accidents occurring within Wyoming only. See also Secs. 124-106-7, R. S. 1931. No award can be made except upon application filed in the county where the injury occurred. Secs. 124-112, 113, R. S. 1931. Other pertinent provisions are Sec. 124-117, R. S. 1931; Chapter 128, p. 276, Laws 1937, Sec. 124-135, R. S., Sec. 124-138, R. S. 1931; Martini v. Coal Company, 38 Wyo. 172. Where the statute is compulsory, rather than elective or optional, without an express statement on the matter, it will be presumed to be without extra-territorial effect. Gould's case, 102 N.E. 45; Cogliano v. Ferguson (Mass.) 117 N.E. 45; Kennerstone v. Boat Co. (Conn.) L. R. A. 1916 A; Crane v. Leonard, et al. (Mich.) 183 N.W. 204; Roberts v. Glass Corp. (Mich.) 244 N.W. 188; Oil Company v. Pitts (Okla.) 13 P.2d 180; Anderson v. Miller Scrap Iron Co. (Wis.) 170 N.W. 275; McKesson-Fuller-Morrison Co. v. Industrial Comm. (Wis.) 250 N.W. 396. The Wyoming Act is compulsory. Sec. 124-103, R. S., Sec. 124-110, R. S. 1931. Failure of the employer to report an accident is a misdemeanor. Sec. 124-112, R. S. 1931. Failure of employer to contribute to the fund makes him subject to a suit for negligence. The Act is not comparable to ordinary commercial insurance. It does not cover employees engaged in interstate trucking. The doctrine adopted by the State of Connecticut is objectionable as pointed out in American Mutual Liability Company v. McCaffrey, 37 F.2d 870, certiorari denied 281 U.S. 751. Decedent was employed in interstate commerce at the time of his death. Jurisdiction of the case was in the Federal government and not in the state. 49 USCA, Appendix, p. 69, Chapter 8, Secs. 301-327. The Motor Carrier Act makes no reference to compensation to employees injured while engaged in interstate trucking or transportation of passengers by automobiles.

For the respondent, Lillian B. Byrne, the cause was submitted on the brief of George F. Sawyer and John L. Sawyer of Torrington.

A brief examination of the authorities and cases of the different states shows the following states specifically granting extra-territorial effect to the Workmen's Compensation Act where the employee is a resident of the state and the contract of employment is made in the state: St. Louis-San Francisco R. R. v. Carros (Ala.) 93 So. 445; Maxey v. Johnson (Arizona) 242 P. 866; North Alaska Salmon Co. v. Pillsbury (Calif.) 162 P. 93; Globe Cotton Oil Mills v. Ind. Acc. Com. (Calif.) 221 P. 658; Douthwright v. Champlin (Conn.) 100 A. 97; Empire Glass & Decoration Co. v. Bussey (Ga.) 126 S.E. 912; Hagenback v. Leppert (Ind.) 117 N.E. 531; Saunder's Case (Maine) 136 A. 722; Myewski v. Martin Bros. Box Co. (Mich.) 203 N.W. 102; State v. Work. Comp. Comm. (Mo.) 8 S.W.2d 897; Prince v. Texas Employer's Ins. Assn. (Tex.) 296 S.W. 294; Pickering v. Ind. Com. of Utah (Utah) 201 P. 1029. The states of Delaware, Illinois, Massachusetts, Pennsylvania and West Virginia say that no extra-territorial application shall be given to the Workmen's Compensation Act. Kansas is sometimes considered in this group but in the case of Hicks v. Swift, 168 P. 904 the Court in discussing the question could not see why it would be restricted to accidents occurring in the state. Wyoming is in the group of states with no provisions and no decisions as are the states of Washington, Oregon, Oklahoma, North Carolina, New Mexico, New Hampshire and Montana. The most important and significant group of decisions, are those where there is no provision but where the Courts have nevertheless held that the Workmen's Compensation Act has extra-territorial application. The states so holding are: Industrial Comm. v. Aetna Life Ins. Co. (Colo.) 174 P. 589; Pierce v. Bekins Van Storage Co. (Iowa) 172 N.W. 191; Krekelberg v. Floyd Co. (Minn.) 207 N.W. 193; Folery v. Home Rubber Co. (New Jersey) 99 A. 624. In New York there is no provision but there have been many Court decisions in which the Courts have generally given extra-territorial effect to the act especially where the employee has been a resident of the State: Edwardsen v. Jarvis Lighterage Co., 153 N.Y.S. 391; Hughes v. Waterson, Berline & Snyder Co., 254 N.Y. 607; Cameron v. Ellis Const. Co., 252 N.Y. 394, 169 N.E. 622; Grinnel v. Wilkinson, 98 A. 103; Zurich Gen. Acc. & Liab. Inc. Co. v. Ind. Comm. (Wis.) 213 N.W. 630. It seems logical that the court should give extra-territorial effect to the Act, where the employee, his dependents and his employer live in Wyoming, and where the contract of employment is in Wyoming. Where these facts exist and the Act is valid as to extra-territorial effect, the authorities seem to be unanimous in holding that the act should govern acts outside of the state as well as those within the state. There was no evidence introduced tending to prove liability in some person other than the employer. A proceeding to recover compensation is not one for damages, but for compensation for a loss sustained. Hollard v. Morley Button Company (N. H.) 146 A. 142. The Act should be liberally construed to carry out its intent and beneficial object. It should be given extra-territorial effect and the judgment below affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The questions presented in this cause arise under the Workmen's Compensation Law of this State. The district court of Goshen County, Wyoming, made an award in favor of Lillian B. Byrne, hereinafter generally referred to as the "claimant," on account of the death of her husband, Ernest E. Byrne, a truck driver. The State Treasurer, as the official in charge of the Workmen's Compensation fund of the state, dissatisfied with the result reached by the trial court, has brought the cause here by the direct appeal method of procedure.

The material facts to be considered are very little in dispute and appear to be these: The claimant, Lillian B. Byrne, through due filing made for that purpose sought in the court above named compensation under the Workmen's Compensation Law of this State, for the death of her husband, Ernest E. Byrne, which occurred on October 31, 1936, about 9:30 o'clock P. M. Byrne, who was a resident of this State, living in Torrington, Wyoming, was employed by one L. F. Ashburn, likewise a resident of this commonwealth, at the time of the accident, as a driver of one of the two trucks owned and operated by Ashburn. The latter was engaged in a general trucking business in the State of Wyoming and also in transporting livestock across state lines to Denver, Colorado. About ninety per cent of the business in which these two trucks were employed was in moving livestock, of which about one-half was intrastate and the other one-half was interstate.

About noon on the 31st day of October, 1936, aforesaid, accompanied by his wife, the claimant above named Byrne, left Torrington with a load of cattle consigned to the Denver stockyards. The truck arrived safely at the stockyards and the animals were unloaded. Byrne and his wife then took the truck and drove up the Brighton boulevard to Denver to procure gas and oil, as well as to obtain their evening meal. They had left the stockyards but a short time when some noise in the rear of the truck attracted Byrne's attention, and being under the impression that perhaps the loading chute for the truck had become loose, Byrne stopped the vehicle on the right-hand side of the road as far as possible off of the paved highway. He then got out of the driver's seat and went around to the rear of the truck to ascertain, if possible, the cause of the noise or trouble, if any. Shortly afterwards a car driven by a drunken Mexican, as alleged in the claimant's petition for an order requiring a report from the employer, Ashburn, one Baca, driving in the same direction as the truck, struck the left rear of the vehicle in Byrne's charge, crushing him between the two automobiles and causing his...