Gimlin's Claim, In re

• Decision Date: 22 June 1965
• Docket Number: No. 3417,3417
• Citation: 403 P.2d 178
• Parties: In the Matter of the Workmen's Compensation Claim of Glenda Vere GIMLIN, Widow of Daniel Gilbert Gimlin, Deceased, filed under the Wyoming Workmen's Compensation Law. WYOMING STATE TREASURER, Appellant (Defendant below), v. Glenda Vere GIMLIN, Widow of Daniel Gilbert Gimlin, Deceased, on behalf of herself and minor children of Daniel Gilbert Gimlin, Deceased, Appellee (Plaintiff-Claimant below).
• Court: Wyoming Supreme Court

Page 178

403 P.2d 178

In the Matter of the Workmen's Compensation Claim of Glenda Vere GIMLIN, Widow of Daniel Gilbert Gimlin, Deceased, filed under the Wyoming Workmen's Compensation Law.

WYOMING STATE TREASURER, Appellant (Defendant below), v. Glenda Vere GIMLIN, Widow of Daniel Gilbert Gimlin, Deceased, on behalf of herself and minor children of Daniel Gilbert Gimlin, Deceased, Appellee (Plaintiff-Claimant below).

No. 3417.

Supreme Court of Wyoming.

June 22, 1965.

John F. Raper, Atty. Gen., Thomas A. Burley, Sp. Asst. Atty. Gen., Cheyenne, for appellant.

Daniel P. Svilar, of Boyer & Svilar, Lander, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Daniel Gilbert Gimlin, deceased, an employee of Wyoming Air Service, a corporation, was killed while piloting an airplane in the business of his employer. His widow, Glenda Vere Gimlin, on behalf of herself and their minor children, filed claims for death benefits under provisions of the Workmen's Compensation Law of Wyoming, Tit. 27, Ch. 4, W.S.1957, Tit. 27, Ch. 4, W.S.1963 Cum.Supp., and Chs. 17, 18, and 193, S.L. of Wyoming, 1965. The employer did not resist the claims, but the State Treasurer as trustee of the Workmen's Compensation Fund resisted the claims on the ground that at the time of the accident which resulted in the fatal injuries to decedent, the decedent was not engaged in an extra-hazardous occupation within the coverage of the law. In disposing of the claims, the trial court determined, among other things, that the decedent at the time of his death was within the coverage afforded by the Workmen's Compensation Law and awarded the benefits to claimants. The State Treasurer has appealed from such orders, and the sole question presented is whether or not the trial court erred in reaching the foregoing conclusion as a matter of law.

The material facts are uncomplicated and largely free from dispute. From a stipulation of the parties and from evidence adduced at the hearing it is disclosed that the business of the employer, Wyoming Air Service, was carried on at the municipal airport in Riverton, Wyoming, and as its name indicates its business was devoted to the rendering of services in connection with the operation of airplanes. Its activities consisted of maintaining, repairing, and servicing aircraft. It was also the owner of airplanes which were used to furnish air-taxi and air-charter trips. Its facilities and equipment were also used for the purpose of conducting a flight-instruction school. The State Treasurer concedes that at least the portion of the employer's business devoted to the maintenance, repair, and servicing of airplanes was within the classification of an extra-hazardous occupation as defined in §§ 27-49(I)(a) and 27-49(I)(b), W.S.1957.

The decedent was employed by the Wyoming Air Service in the fall of 1963, and in general his duties were to gas and service planes of commercial airlines, which was usually done from about 8:30 a. m. to 9:30 a. m.; on occasion to pilot his employer's planes in rendering air services; to work in the repair shop as an apprentice mechanic; to perform janitor and watchman work around the hangars; and as a pilot with an instructor's rating to instruct in the ground school. Approximately sixty percent of decedent's time was spent on the ground and the remaining forth percent was devoted to flying.

In the stipulation of the parties it is recited that during the month of December 1963 the employer entered into an oral agreement with the Fremont County Predatory Animal Board by terms of which the employer agreed to provide an airplane, a pilot, and a person to act as a gunner to hunt coyotes in Fremont County, Wyoming. The employer was to be compensated at the rate of $14 per hour of flying time devoted to such occupation. The recod further discloses that the arrangements made between the employer and the said board were under the supervision of the United States Department of the Interior Fish and Wildlife Service and such Service had on at least two occasions approved payment by the Fremont County Board to the employer for performance rendered under the agreement There was also testimony describing in some detail the nature of the operation. The plane would be flown at an elevation of approximately 300 feet. The gunner carried a twelve-gauge shotgun and used shells furnished by the board. When a coyote was observed from the air the pilot would descend to an elevation of approximately fifty feet over the coyote and the gunner would then make the kill.

On the morning of February 26, 1964, the decedent was instructed by his employer to pilot the plane that was to be used for the day's hunt. During the flight, for reasons undetermined, the plane crashed and the decedent and the gunner riding with him were both killed.

It was also stipulated that at the time of the accident the decedent was reported on the employer's payroll report to the Workmen's Compensation Department 'on the basis of performance as an employee * * * in capacities other than an airplane pilot.'

In support of his claim that the death loss here was not covered under the law, the State Treasurer argues that even though the decedent was within a covered occupation while performing his work on the ground (with the exception of instructing) he was not engaged in a covered occupation while piloting a plane for the reason that such an occupation was not specifically enumerated by the provisions of Ch. 25, § 1, S.L. of Wyoming, 1963 (§ 27-56, W.S.1963 Cum.Supp.), as an extra-hazardous occupation. That is the only point argued in the brief. Concededly the argument presents an interesting question. However, because this case can be determined on other grounds, we deem it unnecessary to decide that point. Our reason for so stating is that, in the first instance, we agree with the contention of counsel for the claimants that the awards of the trial court must be upheld because of the provisions of the statute relating to 'county trappers,' which we shall later discuss; secondly, recalling that disposition of matters of this kind are largely dependent upon the facts and circumstances of each case, Pope v. Safeway Stores, Inc., 54 Wyo. 266, 91 P.2d 58, 65, we point out that subsequent to the accident here the legislature has further amended § 27-56 and has now declared that 'aircraft' pilots, employed under circumstances such as we have here, are engaged in an extra-hazardous occupation. Ch. 18, S.L. of Wyoming, 1965. Without expressing any view as to what effect, if any, such amendment might have on a decision...