Brown v. State ex rel. Morgan, 2839

• Decision Date: 20 January 1959
• Docket Number: No. 2839,2839
• Citation: 79 Wyo. 355,334 P.2d 502
• Parties: Russell L. BROWN, Appellant (Defendant Below), v. STATE of Wyoming ex rel. Charles B. MORGAN, State Treasurer, Appellee (Plaintiff Below).
• Court: Wyoming Supreme Court

Page 502

334 P.2d 502

79 Wyo. 355

Russell L. BROWN, Appellant (Defendant Below), v. STATE of Wyoming ex rel. Charles B. MORGAN, State Treasurer, Appellee (Plaintiff Below).

No. 2839.

Supreme Court of Wyoming.

Jan. 20, 1959.

Pence & Millett, Laramie, for appellant.

Thomas O. Miller, Atty. Gen., and Sterling A. Case, Asst. Atty. Gen., for appellee.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is a case in which the State of Wyoming, appellee herein and plaintiff below, on the relation of Charles B. Morgan, State Treasurer, sought to recover from the appellant herein and defendant below a portion of compensation paid to him from the Industrial Accident Fund of this state. The case was submitted to the trial court without a jury on an agreed statement of facts.

The Industrial Accident Fund of this state is in the control of the Wyoming State Treasurer. On August 8, 1953, the defendant, Russell L. Brown, was physically injured while in the employment of Etlin Peterson Construction Company of Wyoming. At the time of the injury, the defendant was engaged in an extra-hazardous occupation and was covered by the Wyoming Workmen's Compensation Law, W.C.S.1945, § 72-101 et seq. As a result there was paid for and on behalf of the defendant from the said fund the sum of $13,759.16. Most of this amount consisted of hospital and medical expenses. Only the sum of $1,900 was paid directly to the defendant pursuant to an order of the District Court of Albany County on account of temporary total disability resulting from the injury sustained by him. The defendant claimed that his injury was caused by reason of the negligence of the Ashworth Transfer Company, a co-partnership. So on September 25, 1954, the defendant, Russell L. Brown, instituted a civil action in the District Court of Albany County against that partnership. The suit was compromised as a result of which the sum of $22,500 was paid to the defendant by the partnership above mentioned. Thereupon the state demanded from the defendant a portion of the amount of money paid to the latter by the partnership, pursuant to the provisions of § 9, Ch. 143, S.L. of Wyoming, 1951, which reads in part as follows:

'Where an employee coming under the provisions of this Act receives an injury under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee if engaged in extra-hazardous work for his employer at the time of the injury, shall not be deprived of any compensation which he would otherwise receive under this Act. He may also pursue his remedy at law against such third person, provided that he shall not be entitled to a double recovery, and in the event that such employee recovers from such person, he shall be entitled to retain only the excess over any compensation paid to him, and must reimburse the Industrial Accident Fund for all moneys advanced to him for such injury, less not to exceed thirty-three and one-third (33 1/3%) per cent for its share of the costs of such recovery and the net amount reimbursed shall be credited to the account of the employer. * * *'

The amount demanded from the defendant was the sum of $9,172.76, being two-thirds of $13,759.16 paid to the defendant from the Industrial Accident Fund. The defendant claimed that the state was entitled to the return of only $1,266.67, being two-thirds of the $1,900 directly paid to him, and that he offered to pay that amount. He contended that the term 'compensation' does not include any medical, hospital or other expenses except the amount directly paid to him in the sum of $1,900. The state refused this offer and thereupon commenced the present action, contending that there should be paid to the Industrial Accident Fund the sum of $9,172.76. The court gave judgment against the defendant in favor of the state in the sum demanded on the part of the latter and allocated part of that amount to Etlin Peterson Construction Company and the remainder to the Industrial Accident Fund of the state. From the judgment so rendered, the defendant, Russell L. Brown, appellant herein and defendant below, has appealed to this court, and he will hereafter be referred to as the defendant or appellant.

1. Counsel for appellant argue that the statute hereinbefore quoted, namely, § 9, Ch. 143, supra, should be strictly construed as derogatory to the common law. We do not think so. Workmen's compensation acts are the product of the twentieth century. The legislature has the power to attach conditions to the payments to be made under the Workmen's Compensation Law of this state even though a condition affects an amount recovered from a third party. Counsel have cited us to some cases in which the injured party is entitled to payment under the Act as well as to any amount which may be recovered from a third party, but that is not the law of this state. All this court can do is to fairly construe the statutes of this state and apply them.

2. The parties herein stipulated as follows: 'That of the said '13,759.16 paid from the Industrial Accident Fund, approximately $2,800.00 was charged against the account of Defendant's employer and the balance thereof was paid from the Industrial Accident General Fund.'

The statute above quoted provided that 'the net amount reimbursed shall be credited to the account of the employer.' This net amount was considered herein to be $9,172.76. So counsel for appellant argue that since only $2,800 was, under the foregoing stipulation, charged against the account of the employer and deducting that from $9,172.76, the employer would make a profit at the expense of the employee of $6,372.76. That this is a fallacy is clear. Section 21, Ch. 143, S.L. of Wyoming, 1951, provides as follows:

'For the purpose of encouraging care on the part of employers, and thus decreasing accidents to employees, and to the end that each employer shall compensate all injuries to the workmen of such employer and not those of other employers, the State Treasurer shall keep a separate account for each employer so contributing to the Industrial Accident Fund, and shall charge against the account of each employer all warrants paid from said fund:

'(a) As awards for injuries to employees of such employer;

'(b) In payment of medical and surgical supplies and medical or hospital attendance of an employee of such employer;

'(c) In payment for investigations of accidents of such employer, or in payment of investigation of injuries to his employees;

'(d) In payment of witness fees and other costs as herein provided in cases wherein an order of award is granted to the employee of such employer.'

It is clear under this statute that the employer pays all the compensation which is to be paid from the Industrial Accident Fund to an employee and it must be charged to the account of the employer. We cannot assume that the managers of the Industrial Accident Fund have violated the statute and have failed to charge the amount to the employer's account as required; and, that amount having been charged to his account, that account is rightly entitled to be reimbursed as the statute provides. We do not know the exact meaning of the foregoing stipulation. If it contains anything which is contrary to § 21, Ch. 143, supra, it is illegal and void. It should have been made plainer. It probably refers to a matter of bookkeeping between the Industrial Accident Fund and the employer. Under § 18, Ch. 143, S.L. of Wyoming, 1951, the employer pays in any event five per cent of the money earned by each employee. Section 22 of the same Act provides for additional payments to be made if the account of the employer is overdrawn, although the amount overdrawn does not need to be paid at once but may be paid over a period of time. It may be that in the case at bar the employer's account contained a large amount of credit and only $2,800 was necessary to balance it, so as to enable the employer to pay only the minimum monthly payment required to be made under our compensation statutes. In any event, we think that the stipulation above mentioned referred, as stated above,...