Richard v. George Noland Drilling Co., 2841

• Citation: 331 P.2d 836,79 Wyo. 124
• Decision Date: 12 November 1958
• Docket Number: No. 2841,2841
• Parties: Claim of Lillian RICHARD, Lusk, Wyoming, Wife of Deceased, C. B. Richard, and James E. Barrett, Guardian Ad Litem of Clyde Brent Richard, Jr., and Barbara Mary Richard, Minor Children of Deceased, C. B. Richard, Appellants (Employee-Claimants below), v. GEORGE NOLAND DRILLING COMPANY, Incorporated, 823 South Detroit Avenue, Tulsa 20, Oklahoma, Appellee (Employer-Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 836

331 P.2d 836

79 Wyo. 124

Claim of Lillian RICHARD, Lusk, Wyoming, Wife of Deceased, C. B. Richard, and James E. Barrett, Guardian Ad Litem of Clyde Brent Richard, Jr., and Barbara Mary Richard, Minor Children of Deceased, C. B. Richard, Appellants (Employee-Claimants below), v. GEORGE NOLAND DRILLING COMPANY, Incorporated, 823 South Detroit Avenue, Tulsa 20, Oklahoma, Appellee (Employer-Defendant below).

No. 2841.

Supreme Court of Wyoming.

Nov. 12, 1958.

Robert R. Rose, Jr. and Arthur F. Fisher, Casper, for appellants.

Gerald A. Stack, Thermopolis, for appellee.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Claims were filed under the Wyoming Workmen's Compensation Law by Lillian Richard, widow of C. B. Richard, and by James E. Barrett, guardian ad litem of Clyde Brent Richard, Jr., and Barbara Mary Richard, minor heirs of deceased. Death occurred because of asphyxiation during a time when Richard was lying near a butane stove in the lower doghouse at employer's oil well drilling rig, known as Roth No. 2. The matters were tried as one case, and the court denied relief, finding against claimants and concluding as matters of law that:

(1) Decedent in entering upon employer's premises was in an intoxicated condition and was guilty of a gross misdemeanor constituting culpable negligence precluding recovery, and

(2) Deceased had abandoned his employment so that the injury was not a result thereof.

Appellants here urge that the judgment and decree was contrary to the evidence and the law in its holding that (a) employee's death was not a result of his employment and (b) employee's death was due solely to his own culpable negligence.

In a consideration of the correctness of appellants' contentions, it is necessary to determine whether or not deceased at the time of his death and immediately prior thereto was engaged in his employment as a driller's helper or roughneck of the appellee, and if he was, whether or not his injury and resulting death was due solely to his own culpable negligence.

The essential facts disclosed by the record are as follows: Prior to February 18, 1957, the deceased, C. B. Richard, had been employed as a driller's helper or roughneck by the George Noland Drilling Company, Inc., at Roth No. 2, about thirty-eight miles from Lusk, Wyoming, and was working the morning tower (12 midnight to 8 a. m.). The employees furnished their own transportation from their living quarters at Lusk to Roth No. 2 and return; it was customary for them to travel by car pool. On the night of February 18, the four members of the morning-tower crew, L. D. Cates (roughneck), Floyd Bartos (driller), Pete Owens, and C. B. Richard, traveled from Lusk to Roth No. 2 in Cates' automobile. Owens was driving the car and Cates riding in the front seat. They picked up Richard at the Silver Dillar Bar in Lusk about 10:20 p. m. and drove on to Keeline where Bartos joined them.

It is undisputed that Richard had been drinking prior to the time he was picked up at the bar by the other members of the car pool, but the record indicates a difference of opinion as to his condition. Cates said that Richard was sober when he came out to get in the car but admitted on cross-examination that he, Cates, and deceased had had about a dozen drinks of beer prior to 4:30 on the afternoon of the 18th. Bartos said that when he entered the automobile Cates was 'throwing his arms around, on me and Pete Owens' and was intoxicated. Coffey, an oil operator, said he saw Richard in the bar at Lusk about 10:30 on the evening of the 18th and 'He was staggering and he walked to the counter and leaned against the counter and wobbled around and asked for 2 quarts of buttermilk. The waitress misunderstood him and he tried 2 or 3 times to tell her. * * * He was not standing erect. * * * I would say he was intoxicated.' Stafford, a geologist, said he saw Richard in the bar in Lusk between 10 and 10:30 p. m. on the 18th, staggering and leaning against the table; described his actions in fumbling with the door and finally getting it opened; and said that Richard was intoxicated.

In any event the evidence is uncontradicted that Richard upon leaving the bar got into the back seat of the car and went to sleep. The night was cold, something below zero and windy. When the car arrived at the well, Bartos went to the upper doghouse and changed clothes, Owens to the lower doghouse; thereafter, both Bartos and Owens 'went to work.' Cates and Richard stayed in the car about thirty minutes and when it got cold went to the lower doghouse. Cates testified that thereafter he went to the top doghouse and talked to Owens who told him, 'Go on down and change your clothes and we'll call you when we need you,' and that when he relayed this information Richard said, 'Well, I'm going to get me a little nap then,' put some clothes down, and lay on the floor with his head about a foot away from the stove. Bartos testified that approximately two hours after he went to work Owens reported sick men in the lower doghouse, that he went down and found Cates and Richard lying on the floor, carried them outside, and started giving them artificial respiration. Cates later revived and Richard died.

We first review the evidence for answer to the pivotal question, Was Richard engaged in his employment as a driller's helper or roughneck of the appellee at the time he became asphyxiated? Several important facts are uncontroverted:

(1) Richard with the other employees usually, and on the night in question, came to work by car-pool arrangement and was not transported by the employer.

(2) On the night in question he had been drinking, was picked up at a bar, and slept all the way to Roth No. 2.

(3) He was sleeping when he arrived and remained in the car some thirty minutes.

(4) He then left the car with Cates and went to employer's lower doghouse, which was an area utilized by the employer as a place for storage of equipment and by the roughnecks as a place for changing clothes. The room was heated by butane gas.

(5) He stated that he intended to take a nap, and lay down on some clothes near the fire.

Cates testified that he had reported to Owens, intimating that Owens in effect relieved him and Richard from working until called. Owens did not testify at the trial although he was apparently present and was paid mileage and witness fees. Bartos, the driller in charge of operations during the morning tower, testified that Cates did not come to the floor of the rig and that he sent Owens out with an order for Cates and Richard to change clothes and come to work. In any event, it is clear that the deceased did not report to the driller or to anyone else at the well but merely stayed in the car until he was cold, then went into the lower doghouse, took down some clothes, and lay down on the floor before the fire.

The trial court made a finding of fact:

'* * * That after entering upon the premises as aforesaid, the decedent did not go to the place where he should have gone in pursuance of his employment, nor did he equip himself, by changing clothes or otherwise, to continue his efforts in behalf of...