Long v. Big Horn Const. Co.

• Decision Date: 10 April 1956
• Docket Number: No. 2731,2731
• Parties: Edward L. LONG, Employee-Claimant and Appellant, v. BIG HORN CONSTRUCTION COMPANY, Employer-Respondent. Claim for Compensation of Edward L. Long, Injured Employee of Big Horn Construction Company.
• Court: Wyoming Supreme Court

Page 750

295 P.2d 750

75 Wyo. 276

Edward L. LONG, Employee-Claimant and Appellant, v. BIG HORN CONSTRUCTION COMPANY, Employer-Respondent Claim for Compensation of Edward L. Long, Injured Employee of Big Horn Construction Company.

No. 2731.

Supreme Court of Wyoming.

April 10, 1956.

W. P. Farthing, Laramie, for appellant.

Alfred M. Pence, Laramie, for respondent.

SHELDON, District Judge.

Edward L. Long was injured while working as oiler on a power shovel owned and operated by Big Horn Construction Company in Carbon county, Wyoming. An award for temporary disability and medical expenses incurred as a result of his injuries were paid from the industrial accident fund without objection on the part of the employer. Upon being discharged from medical care Long made application for an award for total permanent disability. The employer objected to this claim and a hearing thereon was held by the District Court, resulting in the following findings and judgment:

'1. Said Employee admits misrepresenting his age by eight years, for the sole purpose of securing employment, when the rules and regulations of the Employer company prevented employment of men of Employee's age;

'2. A casual relation existed between (a) Employee's injury and his advanced age, and (b) Employee's advanced age and the permanent ill effects now claimed by Employee as growing out of said injury;

'3. Employee's age, even though he were now uninjured, prevents his present engagement in employment for which he claims to have been qualified;

'4. Employer has raised no objections to the past payment of doctor bills, hospital expenses and temporary total disability of Employee.

'It Is, Therefore, Ordered, Adjudged and Decreed:

'1. Orders for payment of expenses and compensation hereinbefore made herein are confirmed;

'2. The said Employee's claim for permanent total disability is disallowed, and he shall take nothing by reason of his claim. Each of the parties hereto shall pay his own costs.'

The employee-claimant appeals to this court from said findings and judgment, contending that the findings of fact numbered 2 and 3 above are contrary to the evidence and that the judgment is contrary to the evidence and to the law.

Mr. Long admits that in his application to the Big Horn Construction Company for employment he represented that he was 62 years of age, while in fact he was 70 years of age; that such representation was made because he was afraid that if he gave his correct age he would not be hired; that the company relied upon his representation as to age and that he would not have been employed if he had given his correct age.

The evidence discloses that the company has a hard and fast rule against the employment of anyone over 65 to work on heavy equipment and when employees reach that age they are retired. This company rule is based upon the belief that heavy construction work requires a young, agile, strong man capable of quick movement in a hazardous situation and that older men are inclined to get in the way of things and are unable to move or think fast enough to get out of the way.

Under the Workmen's Compensation Law an award of compensation for injuries incurred in extra-hazardous industry must be based upon a contract of employment either express or implied. 4 Wyoming Compiled Statutes 1945, Cum.Supp.1955, ch. 143, Session Laws of 1951, provides in part as follows:

72-103(b) "Workman' means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer * * *. The term 'workman' shall include 'employee' and the term 'employee' shall include 'workman' * * *.'

72-106. 'The rights and remedies provided in this Act for an employee on account of any injury shall be exclusive of all other rights and remedies, at common law or otherwise, of such employee, his personal or legal representatives or dependent family on account of such injury; and the terms, conditions and provisions of this Act for the payment of compensation and the amount thereof for injuries sustained or death resulting from such injuries shall be exclusive, compulsory and obligatory upon both employers and employees coming within the provisions hereof.'

The obvious question follows: Was the claimant's contract of employment nullified by his false representation as to his age? Although there are cases to the contrary, most jurisdictions have adopted the rule of law that employment induced by false or fraudulent representations, not going to the factum of the contract, is voidable and not void and, therefore, the relationship of employer and employee exists and compensation will be allowed for injuries sustained during such employment unless there is a causal connection between the injury and the misrepresentation. 58 Am.Jur. § 335, p. 809; 56 C.J.S., Master and Servant, § 180e, p. 872; 71 C.J. 435; Annotation, 136 A.L.R. 1124.

The above rule appears to have been recognized and applied by the trial court in this case. The question before this court is whether or not the finding of the trial court that, 'A causal relation existed between the employee's injury and his advanced age,' is supported by competent evidence. Mr. Long described the accident which caused his injury as follows:

'The operator sent me underneath the shovel to release the dogs so he could go forward. The dogs were too tight, had to have some slack. I started out from under the shovel to tell him to give me a little slack and he swung the shovel and it caught my overalls and drug me over between the tracks and the bottom of the shovel.'

The manner in which his overalls were caught is not related nor is the machine described, except on cross-examination Mr. Long identified it as a drag line and stated that it was not the bucket which hit him but the shovel itself, which was 4 1/2 feet high off the ground, and he had to stoop under. When asked if he saw the shovel swinging he testified:

'A. There wasn't anything I could do. I seen it swinging, yes, but it had already had me. It had caught in my clothing.

'Q. Caught in your clothing before you saw it, or saw it swinging and then caught?

'A. Just saw it started to swing; it had already caught me.'

Mr. Long concluded his testimony with the statement that he didn't think a younger man could have been able to get away and that he didn't see how his age could have had anything to do with the accident.

Mr. Alfred L. Ellis, district safety engineer for the employer company, testified that he personally investigated this accident and knew approximately how the same took place and in his opinion age and agility had something to do with the accident; a quicker and faster man could have probably avoided it. He stated that it was the house on this machine which caught the employee's overalls and dragged him over the tracks; that the machine was high enough that he could have gotten from under easily; that he didn't see how the employee could avoid seeing the house, but assuming he had not seen it, agility would have had nothing absolutely to do with it. He also testified that the operator of the machine was required to get some signal from the oiler before starting any operation and that none was given in this instance.

Excepting for a description of the employee's injuries, the foregoing constitutes all of the evidence submitted to the court pertaining to the circumstances surrounding the accident. It is obvious that no factual information was available to the court from which it could have been determined that the employee's age was instrumental in any way...