Hotelling v. Fargo-Western Oil Co.

Decision Date28 July 1925
Docket Number1310
Citation33 Wyo. 240,238 P. 542
PartiesHOTELLING v. FARGO-WESTERN OIL CO. [*]
CourtWyoming Supreme Court

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Proceedings under the Workmen's Compensation Law by Mrs. Avery Hotelling for the death of her husband while employed by the Fargo-Western Oil Company. From a judgment disallowing her claim to compensation, plaintiff brings error.

Reversed and Remanded.

E. Paul Bacheller for plaintiff in error.

The question involved requires an interpretation of 4316 C. S.; "Culpable Negligence" is defined in Burns' case 218 Mass. 8; 105 N.E. 601; as meaning gross negligence; see also 20 R. C. L. 22; Boin v. Co. (Calif.) 102 P 927; as to degrees of negligence see Baltimore Co. v Ruzicka, (Md.) 104 A. 167; Md. Cas. Co. v. Com. (Calif.) 178 P. 542; Rideout Co. v. Pillsbury (Calif.) 159 P. 435; the Act applies to employments declared to be extra hazardous, and it was intended that only the grossest forms of negligence would defeat recovery; the Act must be construed as a whole; Uphoff v. Bd. (Ill.) N. E. 128; Peet v. Mills (Wash.) 136 P. 685; 28 R. C. L. 755; the rule of liberal construction applies; Milwaukee v. Miller, 144 N.W. 188; U. S. F. & G. v. Com., 163 P. 1013; Steamboat v. King, 16 How. 474; the law was designed to obviate the delay of jury trials and appeals.

Hagens & Murane for defendant in error.

Injuries due solely to culpable negligence of employee do not warrant a recovery under Sec. 4316 C. S. the authorities cited by plaintiff in error are distinguishable from the case at bar on the facts; "culpable negligence" and "gross negligence" are not synonymous; Peoria v. Clayberg, 107 Ill. 644; culpable means blamable; Vol. 2 Words & Phrases, page 1780; the intent of compensation law is that industry shall bear its share of the loss due to accidents suffered by reason of the hazards thereof; nevertheless, the employee bears some responsibility in the premises. Many Compensation Acts have used the words "wilful misconduct" to bar a recovery; the fact that our legislature used "culpable negligence" shows a clear intention to substitute the meaning of the word "blamable" for the word "wilful" 28 R. C. L. 756-757; a judgment based upon conflicting evidence will not be disturbed; 28 R. C. L. 828; the trial court found that the accident was due to the culpable negligence of deceased.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The plaintiff in error claimed compensation under the Workmen's Compensation Law as the widow of a workman, Avery Hotelling, who was killed while employed by the defendant in error, a corporation engaged in producing and marketing oil and gas. The employer objected to an award on the ground that the workman's death was due solely to his culpable negligence. The district judge disallowed the claim on that ground. The claimant brings the case here on error. The only assignment of error is that the evidence is not sufficient to sustain the order of disallowance.

The facts may be shortly stated as follows: In a pipeline maintained by the employer for carrying gas there is placed a disc-like device, called an "orifice," used in measuring the gas that goes through the pipe. The place where this orifice is put is enclosed by the meter-house. It sometimes becomes necessary to change the orifice. The proper procedure in doing this, is first to shut off the gas in the pipe by closing two valves or "gates," one above and one below the point where the orifice is located. Then the dead gas in the line between the two shut-off points should be permitted to exhaust by means of a blow-off cock in the meter house. When the dead gas has thus escaped, it is safe to break the pipe to change the orifice. About the middle of November, 1924, a workman named McDonald undertook the job of changing the orifice in this line. He was fully instructed as to the manner of doing this. Hotelling was assigned to assist McDonald. There is no evidence that Hotelling had ever before changed an orifice or opened up a gas line, nor that he received any instructions in regard to how such work should be done. He had, however, been employed for many years in oil and gas fields, usually as a driller or tool-dresser. He was employed at the time in question as a "roustabout," which we take to mean that he did any ordinary work that might be assigned to him. It is argued, and may be assumed that the district court found, that Hotelling should have known and appreciated the danger of opening a pipe-line carrying gas. Both McDonald and Hotelling were found dead from asphyxiation in the meter-house, where the orifice was to have been changed. It is evident that they died almost instantaneously on breaking the pipe preparatory to changing the orifice. No one else was present at the time. Only one of the shut-off valves or gates in the pipe was fully closed. The other, only partly closed, permitted gas to continue to run in the pipe at the point where the orifice was to have been replaced. The breaking of the pipe while this valve or gate was not properly closed was evidently the cause of the disaster.

In 1913, Section 4 of Article 10 of the State Constitution, provided that, --

"No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employe waiving any right to recover damages for causing the death or injury of any employe shall be void."

It was thought that this provision forbade enactment of a workman's compensation law which was then in contemplation, and to remove the constitutional obstacle the legislature of 1913 submitted an amendment to said section which reads in part as follows:

"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. * * * The right of each employee to compensation from such fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to such fund in favor of any person or persons by reason of any such injuries or death."

The amendment was adopted at the election held in November, 1914, and the following year the legislature passed the Workmen's Compensation Act, which appears in the Wyoming Compiled Statutes, 1920, as Sections 4315 to 4348. Section 4316, following the language of the constitution as so amended, declares that, --

"Compensation herein provided for shall be payable to persons injured in extra-hazardous employments, as herein defined, or 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."

It is or must be conceded under the evidence, that the workman in this case was engaged in extra-hazardous employment as defined by the law, and that his death resulted from injury sustained in that employment. and the only limitation that is urged as a possible obstacle to the recovery of compensation by his widow is the provision denying the right of compensation "in case of injuries due solely to the culpable negligence of the injured employee."

The provision relied on is peculiar to our laws. In other similar laws compensation is refused when the injury is caused by "serious and wilful misconduct," following the language of the English Act, or "wilful negligence," or a "deliberate intention to cause such injury," or when the injury is "purposely self-inflicted." See cases cited in note to Baltimore Foundry Co. v. Ruzicka, 132 Md. 491, 104 A. 167, as reported 4 A. L. R. 113, and note to British Columbia Sugar Ref. Co. v. Granick, 44 Can. S.Ct. 105, as reported 2 N. C. C. A. 852. Under the English Act of 1906, the Alberta Act, and perhaps other acts that have not come to our attention, if the injury arose out of and in the course of the employment, and death or serious and permanent disability results, there is a right to compensation even though the injury was attributable to the serious and wilful misconduct of the workman. Bourton v. Beaucamp, (1920) A. C. 1001; Grand Truck Pacific R. v. Morreau, 59 D. L. R. 458.

While these exceptions found in other laws differ from the exception in our law, they are thus briefly noticed to show the general purpose of all such laws to provide for compensation except in a very limited class of cases. They illustrate the liberal policy of disregarding the cause of the injury, or, rather, of assigning the hazards of the business as the cause, except where the justice of the case requires that the injury be charged solely to the misconduct of the workman. This policy will receive further notice later in this opinion.

The decisions under other laws are pertinent on the question of the burden of proof. It is held that the burden of proving that the workman was guilty of serious and wilful misconduct or the like, is on the employer. In some of the statutes it is expressly so provided. Parson v. Murphy, 101 Neb. 542, 163 N.W. 847 L. R. A. 1918 F; Haskell & B. Car Co. v. Kay, 69 Ind.App. 545, 119 N.E. 811; Nashville C. & St. L. Ry. v. Wright, 147 Tenn. 619, 250 S.W. 903. The...

To continue reading

Request your trial
17 cases
  • Mills v. Reynolds
    • United States
    • Wyoming Supreme Court
    • March 11, 1991
    ...outset, Worker's Compensation has always been considered a form of industrial insurance rather than damages. Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925). 12 This court irrefutably established the proposition that Worker's Compensation stems from contract and not from ......
  • Smith v. Beard
    • United States
    • Wyoming Supreme Court
    • February 18, 1941
    ... ... Klatz (N. J.) 91 A. 91. The negligence of a physician in ... the treatment of an employee cannot be considered an ... accident. Hotelling v. Fargo-Western Oil Co., 33 ... Wyo. 240; Pero v. Collier-Latimer, Inc., 49 Wyo ... 131; Baldwin v. Scullion, 50 Wyo. 508; Powell v ... ...
  • Cottonwood Steel Corp. v. Hansen
    • United States
    • Wyoming Supreme Court
    • December 21, 1982
    ...of an industrial-accident policy. Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918). See: Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925); In re Byrne, 53 Wyo. 519, 86 P.2d 1095, 1101 (1939); and Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 337 (1942). ......
  • Olson v. Federal American Partners
    • United States
    • Wyoming Supreme Court
    • August 2, 1977
    ...or disease-insurance concepts. See Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989-990; Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542; In re Byrne, 53 Wyo. 519, 86 P.2d 1095, 1101; Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 337; and Markle v. Williamson, W......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT