Barlow v. Makeeff, 2673
| Decision Date | 21 June 1955 |
| Docket Number | No. 2673,2673 |
| Citation | 74 Wyo. 171,284 P.2d 1093 |
| Parties | N. E. BARLOW, Plaintiff and Respondent, v. E. M. MAKEEFF and Chris Haugen, Defendants and Appellants. |
| Court | Wyoming Supreme Court |
Jones & Dumbrill, Newcastle, for appellants.
Clarence G. Cypreansen, R. N. Ogden, Casper, for respondent.
In this case the defendants, under the partnership name of Williston Construction Company, a nonresident employer, entered into a contract with the Hot Springs Rural Electric Cooperative Association to construct about 324 miles of R.E.A. lines in Hot Springs county, Wyoming. The contract price was in excess of $400,000. In order to comply with the statutes relating to workmen's compensation, the Williston Construction Company, as a nonresident employer, gave a bond to the State of Wyoming for $500 (called Performance Bond), pursuant to Chapter 143, § 105, Session Laws of Wyoming 1951, and also gave a bond for $7,500 pursuant to Chapter 143, § 106, Session Laws of Wyoming 1951. The partners desired to sublet part of the work and entered into a contract dated February 15, 1952, subletting the construction of approximately 50 miles of R.E.A. lines in Hot Springs county and adjacent counties to the plaintiff, N. E. Barlow. The subcontractor was to receive 92 1/2% of the unit labor price and the Williston Construction Company was to receive 7 1/2%. Barlow also was a nonresident of the state, but he did not give any bond pursuant to the statutes heretofore mentioned relating to workmen's compensation, nor did he deposit any money with the state. Instead of doing so, the parties in their contract made special provisions as to the payments to be made for workmen's compensation. They provided in their contract as follows:
N. E. Barlow, as subcontractor, performed the work undertaken by him and completed it on October 15, 1952. There was due to him at that time for the performance of his part of the contract the sum of $1,362.58. When that was not paid, he commenced this action on August 3, 1953, against the defendants to recover the amount so due him. On March 22, 1954, the defendants filed an amended answer and a cross petition, alleging in paragraph 3 of the cross petition as follows:
They further alleged that while the plaintiff was working under the above agreement, he employed four men who were injured on the work and therefore were eligible and did draw payments from the Wyoming Workmen's Compensation Fund; that the names of these men and the dates of the injuries and the amounts paid to them from the workmen's compensation account are as follows:
Morton E. Butts.
Injured May 24, 1952.
Paid amount of $7,159.95.
Clarence Wilcox.
Injured May 29, 1952.
Paid amount of $12.50.
Ted Myklebust.
Injured April 20, 1952.
Paid amount of $6.50.
William Frederick Strite.
Injured July 24, 1952.
Paid amount of $203.35.
They further alleged that the total amount of charges against the workmen's compensation account was $7,382.30, of which plaintiff paid the sum of $464.23. Deducting the amount due to plaintiff under the contract in the sum of $1,362.58, left due from Barlow to the defendants the sum of $5,555.49 for which defendants prayed judgment. The action herein accordingly relates solely to the question as to the liability of the respective parties for the sums due for workmen's compensation to injured employees.
It appears herein that during the time from February 15 to October 15 the defendants took care of the amounts necessary to be paid to the compensation fund and charged to the plaintiff 3% of the earnings of laborers employed by him. At the time when the parties entered into their contract, the defendants had on deposit with the treasurer of this state, as part of their workmen's compensation fund, the sum of $2,052.94, so that they were not required to pay into their fund any additional amount until August 1952, after the injuries sustained by plaintiff's employees. As of February 1, 1954, there was due from defendants to the workmen's compensation fund the sum of $5,249.68. Apparently this amount has not been paid by the defendants. Whether or not it has been paid by the insurance company under its bond of $7,500 does not appear herein.
A jury was demanded by the plaintiff Barlow. After the trial of the case, the jury returned a judgment in favor of the plaintiff in the sum of $1,362.58, being the amount demanded by him. Special interrogatories were submitted to the jury. Interrogatory 2 was as follows:
'Under the Sub-Contract Agreement Plaintiff's Exhibit No. 1, did the parties intend that the Plaintiff Barlow should pay the Defendants for the Workmen's Compensation assessments charged against the Defendants, Williston Construction Company's, Wyoming Workmen's Compensation account as a result of injuries to Plaintiff Barlow's employees who were carried on Defendants' Workmen's Compensation account?'
The jury answered, 'No.'
A motion was made by the defendants for a judgment in their favor notwithstanding the verdict. This motion was overruled and on April 5, 1954, the court entered judgment in favor of the plaintiff in the sum of $1,362.58 together with interest and costs. From that judgment, the defendants herein have appealed to this court. Other pertinent facts will be mentioned hereafter.
Many states have statutes covering the relationship between a principal contractor and a subcontractor in so far as it relates to workmen's compensation. See 1 Larson, Workmen's Compensation Law, § 49. The statutes of the State of Washington, for instance, provide in § 51.12.070, Revised Code of Washington 1952, as follows:
'The contractor and any subcontractor shall be subject to the provisions of this title and the person, firm, or corporation letting the contract shall be entitled to collect from the contractor the full amount payable to the accident fund and medical aid fund, and the contractor in turn shall be entitled to collect from the subcontractor his proportionate amount of the payment.'
Our statutes are wholly silent on the subject. In this case both the contractor and the subcontractor were nonresidents. Does our statute contemplate, in order that the workmen's compensation fund may have double security, that both of them should comply with the provisions of Chapter 143, §§ 105, 106, Session Laws of Wyoming 1951, relating to deposits of money and the giving of bonds on the part of nonresidents? The undisputed evidence in this case shows that the plaintiff herein employed the injured employees heretofore mentioned. He was, therefore, an employer as much as the defendants. But the defendants connived with the plaintiff so as to relieve the latter from complying with the provisions of the statutes above mentioned, and instead, entered into the contract heretofore pointed out. The question therefore fairly arises as to whether or not the contract entered into between the parties was illegal so that neither party should have any relief herein. The legislature should clarify the matter. The point has not been argued and we shall leave it open for future consideration or for future action by the legislature. For the purposes of this case, we shall consider the contract between the parties hereto to be valid.
Counsel for plaintiff argued in the...
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