Fox Park Timber Co. v. Baker

• Decision Date: 05 December 1938
• Docket Number: 2078
• Citation: 53 Wyo. 467,84 P.2d 736
• Parties: FOX PARK TIMBER CO. v. BAKER
• Court: Wyoming Supreme Court

84 P.2d 736

53 Wyo. 467

FOX PARK TIMBER CO. v. BAKER

No. 2078

Supreme Court of Wyoming

December 5, 1938

ERROR to the District Court, Albany County; VOLNEY J. TIDBALL Judge.

Proceeding under the Workmen's Compensation Law by Ellen Baker widow of Oliver Baker, employee, to recover compensation for the latter's death, opposed by the Fox Park Timber Company, employer. Judgment awarding compensation to claimant and her minor children, and the employer brings error.

Affirmed.

For the plaintiff in error there were briefs by Corthell, McCollough & Corthell of Laramie, and oral argument by N. E. Corthell.

Oliver Baker, whose death was the occasion of the award, was not an employee of the company--was not carried on the payroll or reported as such, and no contribution was made to the Industrial Accident Fund on his account. At the hearing the company objected to the jurisdiction of the court, on the ground that there was nothing before the court which tendered an issue justiciable under the Workmen's Compensation Act. The objection was overruled. There was an award of compensation. Under the statute, the right to compensation is "in lieu" of any other right of action against the employer, such as a common law action or a suit under Employer's Liability Acts. Both cannot be applied to the same laws. N. Y. Central R. Co. v. Winfield, 244 U.S. 147; Carey v. Trunk Ry. Co. (Mich.) 166 N.W 492; Employer's Liability Corp. v. Dileo (Mass.) 10 N.E.2d 251; Commission v. Evans (Utah) 174 P. 825; Lamont v. Realty Co., 48 Wyo. 56; Crowell v. Benson, 285 U.S. 22. The objection made by plaintiff in error is illustrated in Replogle v. School District (Wash.) 147 P. 196 and in Acres v. Frederick & Nelson, Inc. (Wash.) 140 P. 370. The Oklahoma law provides that if the employer fails to secure payment of compensation under its Act, the employee may maintain an action at law. Akin v. Shelton (Okla.) 53 P.2d 661; Rossi v. Prince (R. I.) 195 A. 401. The liability of the employer is to the state. Snyder v. McCracken, 34 Wyo. 349; Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511. It is essentially an insurance system. Thulemeyer v. Life Assur. Soc., 49 Wyo. 63; Indiana Com. v. Daly Mining Company (Utah) 172 P. 301. Procedure under the compensation act resembles the special jurisdiction of the probate court expounded in Church v. Quiner, 31 Wyo. 222 and Poston v. Delfelder, 39 Wyo. 163; also the special jurisdiction in water right adjudications referred to in Farm Inv. Co. v. Carpenter, 9 Wyo. 110 and Willey v. Decker, 11 Wyo. 496. The nature and extent of compensation controversies are determined by the reports of the employer and the employee, and we think they must be deemed to be jurisdictional. State v. District Court, 33 Wyo. 281, 15 C. J. 797. The claim filed in the proceedings described the occupation in which the injury occurred as "hauling ties." This occupation was converted in the finding of the court to general trucking and logging. There was no evidence showing that deceased was engaged in "general trucking." Leslie v. City of Casper, 42 Wyo. 44. The following cases deal with distinctions as to truck driving, drayage, etc. Edwards v. Dept. of Labor and Industry (Wash.) 262 P. 973; Followell v. Marshall (Okla.) 5 P.2d 149; Brink Express Co. v. Foster (Okla.) 7 P.2d 142; Holland v. Drilling Co. (Okla.) 27 P.2d 591; Fruit v. Industrial Board (Ill.) 119 N.E. 931. Logs are the raw material, not the manufactured product of the tie industry. Hardwood Co. v. L. & N. R. Co. (Ala.) 80 So. 949; Ladiner v. Lumber Co. (Miss.) 100 So. 369; State v. Addington (N. C.) 27 S.E. 988. Extra-hazardous employment is defined in the following cases: Dewey v. Lumber Company (La.) 92 So. 273; Mayor v. Trunk (Md.) 190 A. 756; Burial Park v. Garrison (Okla.) 55 P.2d 1045; Caldwell v. Sproull Company (La.) 164 So. 651. The evidence was insufficient to sustain the findings or justify conclusions of the court. Stockwell v. Morris, 46 Wyo. 1, 8. The cases cited by claimant in the District Court were not in point. The injured workman was not an employee of plaintiff in error. He was doing his work under a contract. Sand and Gravel Co. v. Ind. Com., 23 P.2d 225. The relation of master and servant must exist in order to recover compensation. Granting that "the claim and reports which in compensation cases take the place of pleadings should be liberally construed" (Stanolind Company v. Harvey (Wyo.) 75 P.2d 1) there would appear to be no reason why at least the reports required by the statute should not be insisted upon as a foundation for an investigation and award. The burden is upon the claimant to show that he has received a compensable injury. Koprowski v. Megeath Coal Company, 48 Wyo. 334. For the insufficiency of the proofs to sustain the findings and award, we believe the judgment should be reversed.

For the defendant in error, there was a brief and oral argument by G. S. Parker of Laramie.

Oliver Baker was employed by the Fox Park Timber Company as a truck driver to haul ties. On March 13, 1937, while in the performance of his duties, he was fatally injured by a fellow employee. He left a widow and two minor children. The evidence shows that Oliver Baker's occupation was extra-hazardous and the claim comes within the Workmen's Compensation Law. An examination of the cases cited by plaintiff in error throws little legal light on the subject. The case of N. Y. Central R. Co. v. Winfield, 244 U.S. 147 is not pertinent. In fact all of the cases cited by plaintiff in error may be readily distinguished on the facts from the case at bar. Perhaps, the basic discussion on the subject of employer and employee is found in Schneider's Workmen's Compensation Law, Vol. I, pp. 284 to 310. It is there said that each case must be determined on its own facts. See note 8 of Volume I, page 304, also 19 A. L. R. 226; 20 A. L. R. 684. Commission v. Hammond, 226 P. 1106; 43 A. L. R. 1312; Industrial Commission v. Bonfils (Colo.) 241 P. 735. Supplemental and closely related examples are those found in 58 A. L. R. 872; 78 A. L. R. 493; 105 A. L. R. 580 and 107 A. L. R. 855. The case of Carr v. Krekler, 181 N.E. 526 is quite similar to the case at bar. Another case closely in point is Burrus v. Logging Company (N. M.) 31 P.2d 263. The work performed by Oliver Baker could well be classed under any one of several of the occupations named in the statute. The fact that the employer failed to contribute to the accident fund cannot support his claim of exemption. The general view of courts on the subject is well illustrated by Judge Riner's opinion in Baldwin v. Scullion, 50 Wyo. 508, to the effect that the provisions of the Workmen's Compensation Act should receive a liberal construction. See also In re McConnel, 45 Wyo. 289. In the case of McMahon v. Midwest Refining Company, 36 Wyo. 90, it was held that where there is substantial evidence to support a judgment even though the evidence is conflicting, the court will not reverse the case.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This proceeding in error was brought by the Fox Park Timber Company as plaintiff in error to obtain the review of a judgment of the district court of Albany County in a case arising in connection with the Workmen's Compensation Law of this State. The plaintiff in error may be at times hereinafter conveniently designated as the "Timber Company" or the "defendant." Ellen Baker, widow of Oliver Baker, deceased, the other party involved in the litigation as defendant in error, may subsequently be usually designated as the "claimant." The judgment in question made an award under the Workmen's Compensation Law aforesaid in favor of the claimant and her minor children for the death of her husband, in several amounts, which the trial court found were proper to be made and required pursuant to the statutes governing matters of that character. These amounts appear not to be asserted to be erroneous.

However, the contention is presented and argued on behalf of the Timber Company that the district court was without jurisdiction. First, because the Timber Company did not consider that the relation of employer and employee existed between Oliver Baker and itself and accordingly did not contribute and had not contributed to the Industrial Accident Fund on his account and also declined to file any report concerning the accident involved. Supplementing this view it is also said that the papers filed in the case by the parties were insufficient to permit the question of whether Baker was or was not an employee of the Timber Company to be litigated. Second, because the employment in which the accident occurred was not one of the statutory extra-hazardous employments. Finally the argument is presented for the Timber Company that the evidence before the district court did not authorize it as a matter of fact to find that the relation of employer and employee existed between the defendant and Baker at the time the fatal accident occurred, but that the evidence properly interpreted required a finding that Baker then was an independent contractor so far as the work he was engaged in was concerned.

The accident resulting in this litigation occurred March 13 1937. An "Employee's Report of Accident," as required by the Workmen's Compensation Statutes of Wyoming, was filed March 25, 1937, in the district court of Albany County by Ellen Baker on behalf of her husband, wherein, among other statements set forth, the manner in which the injury was sustained was described, as was also its nature and extent; a description of the injured person was in said report supplied, together with the names and residences of all the dependent members of Baker's family, and his employer's name was given as the Fox Park...