Fuhs v. Swenson

• Decision Date: 24 November 1942
• Docket Number: 2228
• Citation: 58 Wyo. 293,131 P.2d 333
• Parties: FUHS v. SWENSON ET AL
• Court: Wyoming Supreme Court

131 P.2d 333

58 Wyo. 293

FUHS v. SWENSON ET AL

No. 2228

Supreme Court of Wyoming

November 24, 1942

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Proceeding under the Workmen's Compensation Act by John Fuhs claimant, opposed by N. A. Swenson and another, co-partners doing business under the firm name and style of Wyoming Construction Company, employers. From an award for claimant the employers appeal.

Affirmed.

For the appellant there was a brief by G. R. McConnell and Ray Dimmitt of Laramie, and oral argument by Mr. McConnell.

The question presented for review is whether the respondent was guilty of culpable negligence in the performance of his duties, and therefore not entitled to benefits under the Compensation Law. The term "culpable negligence" has not been defined by this court. The subject was discussed in Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240 and the word "negligence" was defined by this court in Hines v. Sweeney, 28 Wyo. 57. Section 124-102, R. S. 1931 precludes recovery by an employee whose injury was due to his culpable negligence. From our examination of compensation decisions, we have an impression that the law has been construed to mean a guarantee by the state and employers to pay all expenses and compensation of injured employees. Courts will take judicial notice of transactions affecting state history. Industrial Commission v. Brown, 110 N.E. 744. It has been the policy to apply liberal rules of construction to the compensation law. The right to compensation is statutory. 71 C. J. 229, 231, 235. It is in the nature of insurance against accident. Zancanelli v. Central Coal and Coke Co., 25 Wyo. 511. It has been held that an employer is not the insurer of his employee. Landeen v. Refining Company (Mont.) 277 P. 615. The rule of liberal construction should be applied. Rothchild v. Marshall, 44 F.2d 546; Century Company v. Strength, 16 P.2d 242; Netherton v. Lightning Company, 258 P. 306. Compensation acts differ so much in terms that decisions of one state seldom are of any assistance in other states. The Wyoming Act does not follow other laws in excluding recovery where claimant has been guilty of culpable negligence. It is apparent that the legislature intended by the use of the word, "culpable" to modify the meaning of the word, "Negligence." 45 C. J. 627; 2 New Cent. Dict. 1130; 25 C. J. S. 23. Culpable neglect in civil cases has been defined as want of watchfulness and diligence and unreasonable inattention. Holway v. Ames, 60 A. 897; State v. Coburn, 12 N.E.2d 471. Culpable is a strong word. Webster gives the following synonyms: "Censurable, reprehensible, blameworthy." See also Bouv. Law. Dict., Rawle's Third Rev. p. 736. It means carelessness, improvidence or folly. Waltham Bank v. Wright (Mass.) 8 Allen 121; Home Owners' Loan Corporation v. Dolittle, 13 N.E.2d 920; Chicago Railway Company v. Brown, 24 P. 497. An authoritative definition of culpable negligence seems to be important in the administration of the compensation law. We believe the lower court erred in its holding that the evidence which was uncontraverted was not sufficient to prove that the employee was culpably negligent in the performance of his duties, and that the court erred in not applying the proper law to the acts of the respondent, which amounted to culpable negligence.

For the respondent there was a brief by Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, of Cheyenne, and oral argument by Mr. Kline.

This case turns upon the interpretation to be placed upon Section 124-102, R. S. 1931, providing compensation for injured workmen, except in cases due solely to the culpable negligence of the injured employee. It is submitted that the evidence shows that John Fuhs was not guilty of culpable negligence. We contend that the case of Karos v. Ocenas, 34 Wyo. 357 is controlling. There was testimony to the effect that at times it is dangerous to light a match and look into a Diesel fuel tank. There are many grades of Diesel fuel, depending upon the efficiency of the refining process. In the more modern refineries, all of the "light ends" are taken off into gasoline and kerosene, so that the Diesel fuel itself has a high flash point. Benson v. Bush (Kan.) 178 P. 747. An employee was allowed compensation for injuries received from the explosion of a can of gasoline, which he used to start a fire. To the same effect is Bubis v. Foundry Co., 191 A. 281, and Kolaszynski v. Klie, 102 A. 4. It has been held that an employee was not wilfully negligent in running a gasoline motor in a closed garage, Struve v. City of Fremont (Nebr.) 250 N.W. 663, nor to wipe moving machinery in the presence of signs ordering that the machinery must be stopped before any work is done upon it. Western P. Railroad Co. v. Industrial Accident Commission, 181 P. 787. It has also been held that it was not wilful negligence for an employee to handle highly charged wires without rubber gloves, as required by rules issued by the employer. Great Western Power Co. v. Pillsbury (Calif.) 149 P. 35. The only cases denying recovery are cases where it appeared that the act was deliberate and wilful. 71 C. J. par. 479; Schneider, Workmen's Compensation Law, 2d Ed. Vol. 1, para. 283. In the case of State v. McComb, 33 Wyo. 347, this court held that mere violation of the statute regulating speed of motor vehicles was not culpable negligence. Numerous definitions of "culpable negligence" are found in "Words and Phrases," Volume 10, pp. 636-645. Fuhs was injured while in the performance of his duties, while working in his employer's interests; in order to avoid running over a fuel tank and wasting fuel, he lit a match which act resulted in an injury. He afterwards admitted that this was a careless thing to do, but stated that at the time he lit the match, he had no knowledge that he was committing a dangerous act. Failure of his foreman to supply a light probably was a contributing factor to his injury. The light bulb ordinarily used had been broken the night before and Fuhs had advised his foreman of that fact, but no new light bulb had been supplied. We are unable to distinguish this case from the case of Hotelling v. Fargo Western Oil Co., 33 Wyo. 240. We submit that the judgment of the trial court is supported by substantial evidence; that this case falls squarely within the rule announced in the Karos case, supra, and that under the decision in that case the employee was not guilty of culpable negligence.

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

OPINION

RINER, Chief Justice.

This case presents the question whether an award for the payment of a physician's bill for services amounting to $ 12.00 and a hospital bill for $ 7.00, incurred in connection with an injury sustained by one John Fuhs, an employee of the Wyoming Construction Company, shall be upheld under the provisions of the Wyoming State Constitution and the Workmen's Compensation Law of this commonwealth. The award was made by the district court of Albany County. No award was ordered for Fuhs, his disability prevailing for less than seven days. (W.R.S. 1931, Section 124-120, with subsequent amendments and especially that of Laws of Wyoming, 1939, Chapter 118, Section 3.)

The employee, John Fuhs, will hereinafter be designated as the "employee" or the "workman" or by his surname as may be found convenient. The Wyoming Construction Company for the sake of brevity will be subsequently mentioned as simply the "Company" or the "employer". It is the party seeking a review of the award and bringing the cause here by the direct method of appeal procedure.

The pertinent constitutional and statutory law aside from that above cited and involved in this lawsuit may be cited as:

Section 4 of Article 10 of the Wyoming Constitution as amended, which provides in part:

"As to all extra hazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries, except in case of injuries due solely to the culpable negligence of the injured employee."

Section 124-102 W.R.S. 1931, omitting material not essential to be considered now, reads:

"Compensation herein provided for shall be payable to persons injured in extra-hazardous employments, * * * * except in case of injuries due solely to the culpable negligence of the injured employes."

That part of Section 124-120 W.R.S. 1931, amended as above indicated:

"Each employee, who shall be injured in any of the extra-hazardous employments as herein defined, * * * * except in case of injuries due solely to the culpable negligence of such injured employee, shall receive out of the Industrial Accident Fund, compensation in accordance with the following schedule, and such right and payment shall be in lieu of and take the place of any and all rights of action against any employer contributing, as required by this chapter, to the Industrial Accident Fund in favor of any person or persons by reason of any such injuries or death."

And Section 124-117 W.R.S. 1931, as amended by Laws of 1937, Chapter 128, Section 6, which declares in part:

"For the purpose of encouraging care on the part of employers and thus decreasing accidents to employes, 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 said fund and shall charge against the account...