Jordan v. Delta Drilling Co.

• Decision Date: 07 October 1975
• Docket Number: No. 4498,4498
• Parties: Linda JORDAN, Personal Representative and Administratrix of the Estate of Bryan, * Deceased, Appellant (Plaintiff below), v. DELTA DRILLING COMPANY, a corporation, et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 39

541 P.2d 39

78 A.L.R.3d 1215

Linda JORDAN, Personal Representative and Administratrix of the Estate of Bryan, ^* Deceased, Appellant (Plaintiff below), v. DELTA DRILLING COMPANY, a corporation, et al., Appellees (Defendants below).

No. 4498.

Supreme Court of Wyoming.

Oct. 7, 1975.

Mayne W. Miller, Casper, for appellant.

R. R. Bostwick and James W. Owens, Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, for appellees, Delta Drilling Co., Claude Womack and Arthur H. Cadwallader.

Richard E. Day, Wehrli & Williams, Casper, for appellee, Cameron Ironworks, Inc.

Before McCLINTOCK, RAPER and ROSE, JJ.

RAPER, Justice.

In Heather v. Delta Drilling Co., Wyo.1975, 533 P.2d 1211, we held that precluding illegitimate children from receiving benefits under the Workmen's Compensation Act in its then form was a discriminatory classiciation which was justified by no legitimate state interest and violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The appeal before us involves the same illegitimate child, through her deceased father's personal representative, seeking damages in damages in a wrongful death action and the question of her equality in this different posture is again raised. There are other issues which we shall meet as we come to them.

Bryan was killed on November 24, 1973, while employed by the defendant-appellee drilling company as a derrick hand on a rotary drilling rig. According to the complaint filed, he was working under the immediate supervision of a driller, defendant-appellee Cadwallader, who, in turn, was under the supervision of a tool pusher, defendant-appellee Womack, also employees of the defendant drilling company. The complaint further states that acting upon instructions from Cadwallader, Bryan closed a valve in a line of pipe for the purpose of isolating a pump on which there was a leaking relief value. The plaintiff alleges that the valve which Bryan closed was defective, it being manufactured and distributed by the defendant-appellee, Cameron Ironworks, Inc. It is contended by the plaintiff that in uncoupling a union, as instructed, due to the failure of the defendants to provide a pressure gauge and ignoring other safety precautions, the union broke and the pipe fitting whipped around and struck Bryan in the side of the head, causing his death.

The defendant, Delta Drilling Company, is charged with a willful disregard for the safety of its employee, Bryan; the defendants, Womack and Cadwallader, fellow employees, are accused of negligence; and, the defendant, Cameron Ironworks, Inc., is blamed with manufacturing and selling a defective and dangerous valve and breach of implied warranty. These acts of the defendants are asserted to be the causes of Bryan's death.

The plaintiff-appellant was appointed, qualified and is the acting administratrix of the estate of Bryan, and as his personal representative, brought this action for his wrongful death under § 1-1065, W.S.1957. The defendant left surviving him an illegitimate child, Heather, for whom damages are sought. The parents of Bryan have been included as claimants in the alternative if Heather should be precluded from recovery because of her illegitimacy.

The parties agreed that Heather is the illegitimate child of the decedent. Summary judgment was entered by the trial court for all defendants on the ground that an illegitimate child is not an heir and therefore is barred by the intestacy laws of Wyoming and there could be no recovery against Delta because the workmen's compensation laws of Wyoming afford an exclusive remedy. The plaintiff appealed from the order granting summary judgment to Womack and Cadwallader; they are, in fact, not mentioned in the order but they are parties to this appeal and argue as though summary judgment had been granted in their favor, as does plaintiff. We conclude that through inadvertence they were omitted from the order granting summary judgment and the trial court did so hold in their favor.

There are three issues in the appeal:

1. Does illegitimacy bar recovery in Wyoming under the circumstances of this case, for wrongful death?

2. Do Wyoming's workmen's compensation laws bar a wrongful death action against Delta for willful acts of negligence?

3. Are fellow employees included with their employer if Delta is insulated from a wrongful death action under the facts we have here for consideration?

In 1973, ¹ § 1-1066, W.S.1957, 1975 Cum.Supp., was amended and now provides as follows:

'(a) Every action under section 1-1065 ² of the statutes shall be brought by, and in the name of, the personal representative of the deceased person.

'(b) If the deceased left a husband, wife, child, father, or mother, no debt of the deceased may be satisfied out of the proceeds of any judgment obtained in any action brought under the provisions of this section.

'(c) The court or jury, as the case may be, in every such action may award such damages, pecuniary and exemplary, as shall be deemed fair and just. Every person ³ for whose benefit such action is brought, may prove his respective damages, and the court or jury may award such person that amount of damages to which it considers such person entitled, including damages for loss of probable future companionship, society and comfort.

'(d) Every such action shall be commenced within two years after the death of such deceased person.'

This amendment omitted any reference to distribution of the proceeds to survivors under the law of this state with respect to the estates of those persons dying intestate and did not restrict the action to heirs of the decedent as the original act did. ⁴

This is a case of first impression in Wyoming because the legislature has apparently departed from the concept that the action is initiated only for the benefit of heirs of the decedent under the rules of intestacy pertaining to descent and distribution. ⁵ The appellees tell us that even now to hold otherwise would leave no provisions as to persons who could bring an action under the wrongful death statute and that it would be unreasonable that anyone but an heir could be considered within the term 'every person.' To hold otherwise, claim the defendants, would certainly create an unwise and intolerable situation. Right now, we are only concerned with the right of an illegitimate child to proceed as a 'person.' We are not prepared to say what other classifications might be included, such as collateral relatives, stepchildren or partners of a decedent but we visualize, without invitation, that imaginative and innovative claims will be made under this amended version of the wrongful death law of Wyoming.

We see no mandate from the legislature that because an administrator is appointed that this means only heirs may be beneficiaries to the proceeds derived as a result of the action. The administrator acts but in the capacity of a trustee. Coliseum Motor Co. v. Hester, 1931, 43 Wyo. 298, 3 P.2d 105. The Wyoming statute authorizing wrongful death actions is part of the civil code of this state and not a part of the probate code. The designation of an administrator is no more than a statutory device to provide a party for a civil action to collect damages and pay them over to the persons entitled. [6] As said in Ashley v. Read Construction Co., D.C.Wyo., 1961,195 F.Supp. 727, 729, 'We must not confuse an administrator acting as a personal representative with an administrator of an estate whose duties and powers are set out in Section 2-142, Wyoming Statutes 1957, et seq. * * *' The amount of recovery does not become a part of the decedent's estate. Tuttle v. Short, 1930, 42 Wyo. 1, 18, 288 P. 524, 529, 70 A.L.R. 106, 112. This is true even though the administrator or executor must bring the action. Bircher v. Foster, Wyo.1963, 378 P.2d 901, 902.

Nor can we say that the language of § 1-1066(b) requires distribution under the laws of intestacy. It states only that when a decedent leaves a husband, wife, child, father or mother, any wrongful death action recovery shall not be liable for any debts of the deceased. The qualifications of the person for whom recovery is sought are those which may establish to the jury an entitlement to a fair and just award of damages. No more. We cannot amend the law to add more than what is clearly said and enlarge, stretch, expand or extend a statute to matters not falling within its express provisions. Lo Sasso v. Braun, Wyo.1963, 386 P.2d 630, 632. The legislature, by amendment deleting any reference to the laws of distribution of a decedent's estate, has eliminated any question of a relationship between heirship and entitlement to damages. Generally, when the legislature, by amendment, has deleted an express provision of a statute, the presumption is that a change was intended. Stolldorf v. Stolldorf, Wyo.1963, 384 P.2d 969, 972.

Since a wrongful death action is not a probate matter and bears no relationship to any rule of descent, we consider inapplicable Labine v. Vincent, 1971, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, reh. den. 402 U.S. 990, 91 S.Ct. 1672, 29 L.Ed.2d 156, cited by appellees, wherein the Supreme Court of the United States held that the state's statutory scheme, barring an illegitimate child who had been acknowledged but not legitimated from sharing equally with legitimate heirs in the father's estate, had a rational basis in view of the state's interest in promoting family life and of directing the disposition of property left within the state, and such statutory scheme did not constitute an invidious discrimination against illegitimate children in violation of the due process and equal protection clauses. Justice Harlan, in a concurring opinion, stated that there was no denial of equal protection in the constitutional sense, since it was reasonable for the state to provide that a man who entered into a marital relationship thereby undertook obligations...