Lichty v. Lichty Const. Co.

Decision Date07 April 1952
Docket NumberNo. 2546,2546
Citation69 Wyo. 411,243 P.2d 151
CourtWyoming Supreme Court

Franklin B. Sheldon, Riverton, for appellant.

Harry S. Harnsberger, Atty. Gen., Howard B. Black, Deputy Atty. Gen., Paul T. Liamos, Jr., Asst. Atty. Gen., for respondent.

RINER, Justice.

The question to be determined in this case is what meaning the Legislature of this State intended should be given to certain words appearing in the Workmen's Compensation Law of Wyoming where the term 'workman' is undertaken to be defined. It involves the proper application of those words in the Act aforesaid to the facts and circumstances of the case at bar as regards the disposition of the claim of Ruth S. Lichty for death benefits under said law and also the claims of a physician and mortician for professional services rendered in connection with the matter.

The facts and circumstances aforesaid appearing in the case are undisputed; the parties having signed an agreed statement of facts which is before us as it was before the district court of Fremont County and which, together with the uncontradicted testimony of the claimant, Ruth Lichty, supplied the basis for the rejection of those claims by the lower court. The Workmen's Compensation Department of the State of Wyoming had also previously ruled that these claims should be rejected.

The accident occurred March 20, 1950, about five miles west of Riverton, Wyoming, on U. S. highway 287. On April 5, 1950, the doctor who was summoned to the scene of the accident filed his official report relative to the matter with the Clerk of the District Court stating that Glenn N. Lichty died as a result of the truck which he was driving going out of control, throwing him from the cab and then rolling over him causing a broken neck and crushed chest.

April 5, 1950, the employer, the Lichty Construction Company, also filed with said Clerk its report of the accident; in describing how the injury occurred this was said: 'pickup hit slick spot in the road, overturned, pinning workman underneath.' It was also therein stated that the accident grew out of the man's employment which was that of manager and foreman on the construction work in which the Lichty Construction Company was then engaged; that the injury was fatal; this report was signed 'Lichty Construction Company' as 'employer by Ruth S. Lichty, Secretary-Treasurer;' said report having been sworn to by her April 4, 1950.

The same day these filings were made Ruth Lichty, as the widow of Glenn N. Lichty, also filed with said Clerk her verified application and claim for an award of compensation under the Workmen's Compensation Law of the State of Wyoming, setting out substantially the information contained in the two reports mentioned above.

On April 6, 1950, filed April 7, 1950, the Manager of the Workmen's Compensation Department of this State, wrote the physician who made the report aforesaid that:

'It is our conclusion that Glen M. Lichty was not covered under provisions of the Workmen's Compensation Law, as his status was that of employer rather than employee by reason of his being a director and president of the corporation, the Lichty Construction Company, at the time of his death.'

April 12, 1950, the Clerk of the District Court wrote Mrs. Lichty that:

'The State Compensation Department advises that this Claim should be rejected, because Mr. Glenn N. Lichty was not covered under provisions of the Workmen's Compensation Law, as his status was that of employer rather than employee by reason of his being a director and president of the corporation, the Lichty Construction Company, at the time of his death.'

Pursuant to section 72-112 W.C.S.1945 Mrs. Lichty, as claimant made application on her claim for a hearing thereon by the District Court of Fremont County.

On April 19, 1950, the Workmen's Compensation Department's Chief Clerk sent a letter to E. E. Davis, the mortician aforesaid, advising him that Glenn N. Lichty was not covered by the provisions of the Workmen's Compensation Law for the same reason as set forth in the letters of the Clerk of the District Court and the manager of the Workmen's Compensation Department of this State, as above recited.

The district court aforesaid set the matter for hearing on May 9, 1950, and further ordered the employee claimant and employer defendant to be duly notified thereof. This order for a hearing was subsequently changed to fix the ultimate hearing date on October 8, 1951. On that date the claimant, Ruth Lichty and her counsel and the Workmen's Compensation Department represented by the Attorney-General of the State of Wyoming all appeared and trial of the matter was had before the court without a jury. As recited by the judgment thereafter entered October 24, 1951:

'The Stipulation of Facts signed by the claimant, her attorney, and the Attorney General, and filed herein, was submitted to the Court as evidence and in addition thereto, the oral evidence of Ruth S. Lichty was submitted to the Court, and the claimant thereupon rested, and the Attorney General having rested and the Court having heard the arguments of counsel and being fully advised in the premises * * *.'

The court then found generally against the claimant and:

'* * * particularly that, although the deceased, Glenn N. Lichty was killed while engaged in extra-hazardous employment on behalf of the Lichty Construction Company, he was at the time holding an official position with said company as a director and president thereof, and was therefore not covered as a workman under the provisions of the Workmen's Compensation law.'

The judgment rendered was:

'It Is Therefore Ordered, Adjudged and Decreed by the Court that the claim of Ruth S. Lichty as the widow of Glenn N. Lichty, deceased, for death benefits, and the claim of E. E. Davis for funeral expenses, and the claim of Dale Ashbaugh for doctor's bill, filed in the above entitled cause, be and all of them are hereby denied.'

From this judgment, upon due exception allowed, the instant appeal proceeding was prosecuted.

The stipulation of the parties, omitting recitals of appearance by counsel for the claimant and the Attorney-General, acting for and on behalf of the Workmen's Compensation Department of the State of Wyoming is as follows:

'* * * that the application and claim for an award by the said Ruth S. Lichty in the above-entitled compensation case be submitted to the court for hearing and determination upon the following statement of facts, which both parties agree to be true and correct, together with any additional evidence produced under the provisions hereof, to wit:

'(1) The employer company, the Lichty Construction Company, is a corporation organized and existing under and by virtue of the laws of the State of Wyoming. The corporation was formed on the 16th day of May 1946. On March 20 1950, the date of the accident in question, the stockholders of the company and the number of shares of stock owned by each were as follows:

                Name of Stockholder     Shares Owned
                -------------------     ------------
                Glenn N. Lichty                447
                Michael H. Lichty               41
                John Lichty, Jr.,               41
                Ruth S. Lichty                  57
                Total number of shares
                 outstanding:                  586

'At that time Glenn N. Lichty, Ruth S. Lichty and Michael H. Lichty were the directors of the company and the officers were Glenn N. Lichty, president and superintendent of construction; Michael H. Lichty, vice-president; and Ruth S. Lichty, secretary-treasurer. Ruth S. Lichty was the wife of Glenn N. Lichty, and Michael H. Lichty and John Lichty, Jr., were brothers of Glenn N. Lichty. The two latter were at times employed by the Company and at such times were carried on the payroll and reported to the Compensation department as such.

'(2) The company was and is engaged in heavy construction work such as highway construction work. It owned and used miscellaneous heavy dirtmoving equipment ordinarily used in this type of work, such as tractors, bull dozers, scrapers, rollers, draglines and trucks. In the year 1949 the book value of its equipment was approximately $118,000. It was a pre-qualified contractor with the Wyoming State Highway Department up to the sum of $205,000, which means that it could bid on and contract for construction jobs up to that amount.

'Weather conditions to a large extent controll (control) the time that could be spent on jobs and the company maintained no labor force during the winter months in which it could not work. However, during the periods it could work it employed a rather large labor force, employing as many as twenty-five or more men for various purposes, including the operation of the machinery above described. All of such employment was and is an extra-hazardous occupation as defined and as covered by the Workmen's Compensation Law.

'At the time of the injury here in question the company was lining the Pilot Canal on the Riverton Project in Fremont County with asphaltic membrane under the contract with the Bureau of Reclamation.

'(3) From the time of formation of this corporation to and including March 20, 1950, Glenn N. Lichty, the deceased, was at all such times in full and complete charge of the corporation.

'He performed all of the duties and functions ordinarily and usually performed by the president of a corporation such as the supervision and execution of various and sundry reports to governmental agencies; the negotiation and completion of contracts on behalf of the corporation; the signing of checks and other instruments necessary to the transaction of the corporate business. In addition to his duties as president he was also superintendent of construction. He had the right to hire and fire employees and to fix their pay; to examine, estimate and submit bids on proposed construction in which he was interested, and to bind an obligate the corporation to carry out contracts entered into for...

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