Jim's Water Service v. Eayrs

Decision Date06 March 1979
Docket NumberNo. 5037,5037
PartiesJIM'S WATER SERVICE, Appellant (Employer-Defendant below), v. Judith Marie EAYRS, on behalf of James Clinton Eayrs, Appellee (Employee-Plaintiff below).
CourtWyoming Supreme Court

Francis E. Stevens, Gillette, for appellant.

Gordon W. Schukei, Newcastle, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *

McCLINTOCK, Justice.

Jim's Water Service, employer, appeals from judgment of the district court of Weston County awarding death benefits to Judith Marie Eayrs and her three children. The claim had its basis in the death of James Clinton Eayrs. Employer contends that the death was not compensable under our Worker's Compensation statutes because of failure to prove a proper causal relation between the death and abnormal working conditions; that Judith is not entitled to benefits as a surviving spouse because no formal marriage existed between her and the decedent and no common-law marriage was proved; and that award of benefits to the children should have been denied since their dependency upon decedent was not shown. We shall affirm, reciting the facts as they become pertinent to the particular issue involved.

The Cause of Death

The cause of the death was determined to be an occlusive coronary atherosclerosis. The employer contends that the evidence was insufficient to prove the required direct causal connection between the condition of the work and the death. 1

On November 10, 1977 James was employed by Jim's Water Service, Inc. in Gillette. He started work the next day as a driver of a water truck which was employed hauling water to oil rigs in the area. His duties basically included the driving and some simple maintenance of the truck. James worked long hours, sometimes driving up to 18 hours a day. Nine days after he started to work he was hauling water to a drilling rig in Weston County and his truck became stuck in a snowdrift. It was a cold day, with strong winds and deep, blowing snow. James walked about one mile through the snow to seek help, arriving at the residence of Jack Dowdy between nine and ten o'clock that morning. William Riehemann drove with him back to the scene in Riehemann's Jeep at about three o'clock in the afternoon but they had to walk two to three hundred yards through the snow to the truck. They then shoveled vigorously for about one-half hour. About four o'clock James climbed into the cab to drive while Riehemann was to push. The motor began to race, and when Riehemann went to the cab he found James slumped over the wheel. James stopped breathing very shortly afterward and was pronounced dead at 5:50 p. m.

The manager of the employer's Douglas division testified that long hours for such drivers were ordinary and normal. It was not unusual or abnormal for drivers to become stuck in the snow or mud or to lift fairly heavy objects. Each truck carried a shovel and chains and drivers were expected to attempt to free their trucks from difficulties. If they were unable to do so they were expected to use a high-frequency radio in the truck to call for help. James made no such call.

James D. Henry, M.D., a qualified pathologist, performed an autopsy upon the body and found the cause of death to be an occlusive coronary atherosclerosis. He found the heart to show existing marked occlusion of up to 90 per cent of all three major vessels. He declined to say that he could determine to a reasonable medical certainty that the stress caused or precipitated the death and stated that James could have died in his sleep just as easily as on the job. However, he also testified that the stress was a "contributing factor" and that the arrhythmia "very likely" and "probably" was due to the physical exertion and strain. That is sufficient evidence of the causal connection. The question that needs to be answered is whether the work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing disease and the resulting death. Claim of Vondra, Wyo., 448 P.2d 313 (1968); Claim of Hill, Wyo., 451 P.2d 794 (1969); Claim of Brannan, Wyo., 455 P.2d 241 (1969). See also, 1 Larson, Workmen's Compensation Law, § 12.20, p. 3-276. While it is not a compensation case, this quotation from Rocky Mountain Trucking Company v. Taylor, 79 Wyo. 461, 479, 335 P.2d 448, 453 (1959) is also pertinent:

"A belief entertained by an expert is a positive opinion about which he is entitled to testify. His belief is not a statement of mere possibility unless the witness so qualifies it."

The required nexus between the exertion and stress and the resulting coronary occlusion was found by the trier of fact and is supported by substantial evidence.

The second aspect of this question, whether the exertion of James occurred during a period of stress unusual or abnormal to his working conditions, must also be answered in claimant's favor. The manager's testimony concerning decedent's duties and the driver's obligations when stuck does not completely answer the question. The best approach is first to ascertain the normal and usual task of the driver and then determine if the event in question exceeded that limit.

James was expected to haul water and to maintain his truck. In the event he became snowbound he was expected to use reasonable efforts to extricate himself. The trier of fact had sufficient substantial evidence to find the normal routine was exceeded when James acted to the degree he did and that the stress or exertion, while not different in kind, was greater in degree than normal. It appears from the evidence James was involved in an effort that consumed the entire day of November 20 and involved extensive and strenuous efforts. In Mor, Inc. v. Haverlock, Wyo., 566 P.2d 219 (1977) we found the burden satisfied when the causative exertion was clearly something beyond the worker's normal and usual routine. We will not disturb the determination of facts here.

The Marital Relation of the Parties

In order for Judith to receive benefits under our law she must have been "legally married" to James. Section 27-12-408(a), W.S.1977. 2

James and Judith were married in 1969 but divorced in 1974. For a while they maintained contact after their separation on a sporadic basis. James provided no support during these years because of inability to do so. In June of 1977 he returned to Kalispell and resumed living with Judith but they did not formally remarry. Judith was disabled and her only income was from disability benefits provided to her by the State. James worked periodically and provided such support as he could for her and the three children, although evidence is lacking as to the amount. They had no joint financial accounts or other joint property. His odd-job employment required him to leave Kalispell, and occasionally Montana, but he always maintained Judith and the children's residence as his own. The two shared expenses, care, work, and a home. They considered themselves man and wife and represented this to friends and the world. They were, in Judith's words, "still married; as far as God's law we had not been divorced."

The employer concedes that the residence of the parties and the marriage, if any, were in Montana and that the State of Montana still recognizes common-law marriage. Section 48-314, R.C.M.1975. He also concedes that under § 20-1-111, W.S.1977 we must look to Montana as all marriages which are valid by the laws of that state are to be valid in Wyoming. Hoagland v. Hoagland, 27 Wyo. 178, 193 P. 843 (1920). If James and Judith were found to be validly married under the common law, she would therefore be entitled to benefits under our statute. The point of the employer's argument is that the facts here do not support the trial court's decision finding a valid common-law marriage and giving Judith her due.

As essential elements of such a marriage Montana requires mutual consent, assumption of a relationship by consent and agreement as of a certain time, cohabitation, and repute. Welch v. All Persons, 78 Mont. 370, 254 P. 179 (1927); Elliott v. Industrial Accident Board, 101 Mont. 246, 53 P.2d 451 (1936); Miller v. Sutherland, 131 Mont. 175, 309 P.2d 322 (1957). The burden to prove these elements is on the one asserting the validity of the marriage, and is satisfied by a preponderance of the evidence. However, there is a strong presumption in favor of the legality of a common-law marriage. Welch v. All Persons, supra; In re Estate of Slavens, 162 Mont. 123, 509 P.2d 293 (1973). The element of repute is a key term, and several cases where the Supreme Court reversed the finding turned on this issue. Miller v. Townsend Lumber Co., 152 Mont. 210, 448 P.2d 148 (1968); Estate of Slavens, supra; Matter of Estate of McClelland, 168 Mont. 160, 541 P.2d 780 (1975). The cases make clear that repute means general community reputation, that is, did the parties consider themselves as married and so act as to all the world? It relates to the reputation, character and status of the relationship. Welch v. All Persons, 85 Mont. 114, 278 P. 110 (1929).

On the evidence presented here we have no choice but to affirm. The only evidence on the issue was given by Judith and it supports the marriage. Not all the formalities were followed, but repute, consent and cohabitation were all proven sufficiently by uncontradicted testimony and presumption of law.

Cases cited in Bowers v. Getter Trucking Company, Wyo., 514 P.2d 837 (1973) may have required a different result, but they were decided before the amendment of § 27-12-408(a), W.S.1977. The statute in effect at the time of Bowers required a surviving spouse to have been "regularly married by a marriage duly solemnized by a legal ceremony" before benefits could be given. Our new statute, enacted shortly after the rendition of this undefinitive opinion, requires only that the parties have been "legally married." We hold that a common-law...

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