Markle v. Williamson
| Decision Date | 01 February 1974 |
| Docket Number | No. 4260,4260 |
| Citation | 518 P.2d 621 |
| Parties | Walter H. MARKLE, Appellant (One of Defendants below), v. Easter C. WILLIAMSON, Individually and as Administratrix of the Estate of W. R. Williamson, Deceased, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Edward E. Murane of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellant.
R. R. Rose, Jr. and G. L. Spence, Casper, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.
This is an appeal by Walter H. Markle, one of the defendants below, from the award of a wrongful death judgment against him in the sum of $100,000.00.
For the purposes of this appeal the parties entered into an agreed statement of the factual and procedural matters necessary or appropriate to the appeal in lieu of a transcript of the proceedings. It shows that plaintiff's deceased died as a result of a fire and explosion at the Texaco, Inc. Refinery near Casper, Wyoming. At the time, the deceased was an employee of Texaco and was acting within the scope of his employment. Markle was also an employee of Texaco and acting within the scope of his employment. Texaco was in full compiance with the Wyoming Workmen's Compensation Act and both Williamson and Markle were listed as employees. Plaintiff, Esther C. Williamson, filed her action against Texaco, Ceco Corporation, and Walter H. Markle. Texaco's motion for summary judgment was granted on the basis that the workmen's compensation laws of the State of Wyoming precluded direct action against an employer covered by the Workmen's Compensation Act, brought on behalf of an employee killed while within the course of his employment with such covered employer. Defendant William H. Markle's motion for summary judgment, asserting, inter alia, that the workmen's compensation laws of the State of Wyoming precluded direct action against a co-employee on behalf of a covered employee killed while both employees are in the course of their employment, was overruled.
The case went to trial only against Ceco Corporation and Walter H. Markle; and as to Markle, the question ultimately submitted to the jury was the issue of ordinary negligence on the part of Walter H. Markle which contributed to and was the proximate cause of the alleged death of the decedent. The jury found in favor of the defendant Ceco and against the defendant Markle, assessing damages in the sum of $100,000.00. The trial court denied defendant Markle's motion for judgment notwithstanding the verdict, which was based in part on the court's failure to grant defendant's directed verdict motion made during trial.
In their agreed statement the parties stipulated that:
'The only question raised on this Appeal is whether, under the laws of the State of Wyoming, the administrator of the estate of a deceased employee can maintain a direct action against another employee for wrongful death caused by the latter's alleged independent negligence, where both employees are covered under the Workmen's Compensation Account maintained by their common employer.'
Prior to the 1914 amendment to Art. 10, § 4, Wyoming Constitution, it was constitutional law in Wyoming that 'No law shall be enacted' limiting the amount of damages to be recovered for causing the injury or death of any person. The amendment changed this constitutional prohibition only to the extent that workmen's compensation was made the exclusive remedy against 'any employer' contributing to the compensation fund. The language is clear and speaks for itself.
Although the legislature cannot diminish the constitutional restriction even if it wished to do so, it has in fact implemented and followed the constitutional guarantee by statutory enachment. Section 27-50, W.S.1957, closely follows the constitutional language and specifically provides:
'* * * the right of each employee to compensation from such funds 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 such person or persons by reason of any such injury or death. * * *'
Section 27-78, W.S.1957, also closely follows the constitutional language and provides:
'Each employee, who shall be injured in any of the extra-hazardous employments as herein defined, or the dependent family of any such injured workman, who may die as the result of such injuries except in cases of injuries due solely to the culpable negligence of such injured employee, shall receive out of the industrial accident fund, compensation in accordance with sections * * * of this act, and such right and payment shall be in lieu of and take the place of any and all rights of action against any employer contributing, as required by this act, to the industrial accident fund in favor of any person or persons by reason of such injuries or death.'
Section 27-54, W.S.1957, 1973 Cum. Supp., provides in unambiguous language that where an employee receives an injury under circumstances creating a legal liability in some person 'other than the employer' he may also pursue his remedy at law against such third person:
* * *
'In case the injury causes the death of the employee, the rights and remedies set forth in this section shall inure to and obligations shall be binding upon the personal representative of such deceased employee for the benefit of his or her dependents.'
The annotation in 21 A.L.R.3d, § 3(a), pp. 850-852, indicates there are some twenty-odd states which permit actions against fellow employees, as persons 'other than the employer,' while some half dozen jurisdictions have held otherwise. We like the majority point of view. Absent a valid statute in Wyoming which prohibits suit against a fellow employee, we must be careful not to be influenced by authorities from states with statutes and constitutional provisions which are broader than those in Wyoming.
There is a pervading rule that valuable common law rights shall not be deemed destroyed by a statute except by clear language. See Bosel v. State, Alaska, 398 P.2d 651, 654; Saala v. McFarland, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400, 404; Industrial Indemnity Co. v. Columbia Basin Steel & Iron Inc., 93 Idaho 719, 471 P.2d 574, 578; Valdez v. State, 83 N.M. 720, 497 P.2d 231, 233, aff'd 497 P.2d 743; Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142, 144; and Southern Railway Company v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 873.
We find nothing in either the 1914 constitutional amendment or in §§ 27-54, 27-50 and 27-78 which expressly says that a co-employee shall be immune from suit. Having said the employer shall be immune, the legislature surely would have used similar language to say co-employees were immune-if it had so intended.
The general rule seems to be that where there is no expressed legislative mandate to the contrary, a co-employee or fellow servant is a third party tortfeasor within the meaning of a workmen's compensation act like ours. Annotation 21 A.L.R.3d, § 3, p. 850; 2 Larson's Workmen's compensation Law, §§ 72 and 72.10, p. 174; 58 Am.Jur., Workmen's Compensation, § 61, p. 617; 101 C.J.S. Workmen's Compensation § 985(e), p. 481.
The opinion in Hockett v. Chapman, 69 N.M. 324, 366 P.2d 850, contains an excellent summary of reasons for holding that the term 'person other than the employer' includes a co-employee; and an employer's immunity does not extend to a negligent co-employee in a suit by the injured employee or by his representative if deceased. Without undertaking to summarize all of the reasons set forth in the Hockett opinion we do nevertheless recommend the opinion to our readers.
Speaking in a general way, this court said in Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542, 544, that under Wyoming's Workmen's Compensation Act, there is a prima facie right to compensation when disability or death is the result of an injury sustained in extra hazardous employment, as defined by the statute, and the right to compensation should not be denied unless the injury or death is due solely to the negligence of the workman whose injury or death is the basis of the claim.
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