Trent's Claim, In re

• Decision Date: 15 May 1951
• Docket Number: No. 2468,2468
• Citation: 231 P.2d 180,68 Wyo. 146
• Parties: In re TRENT'S CLAIM. TRENT, v. UNION PACIFIC COAL CO.
• Court: Wyoming Supreme Court

Page 180

231 P.2d 180

68 Wyo. 146

In re TRENT'S CLAIM TRENT, v. UNION PACIFIC COAL CO.

No. 2468.

Supreme Court of Wyoming.

May 15, 1951.

W. A. Muir, Glen G. Stanton and W. J. Muir, all of Rock Springs, for appellant.

Edwin V. Magagna and Joseph H. Galicich, both of Rock Springs, for respondent.

RINER, Justice.

This cause arises under the Workmen's Compensation Act of the State of Wyoming, W.C.S. 1945, § 72-101 et seq., and brings up for review an order made by the District Court of Sweetwater County declining to make an award in favor of plaintiff and appellant, Ella Mae Trent, who asserts that at the time of the death of J. Walter Trent she was his wife and depending on him for support. The employer, the Union Pacific Coal Company, as defined below, and respondent here objected to and questioned the claimant's right to an award under the Act aforesaid.

This proceeding was instituted by the claimant by direct appeal to reverse the ruling of the district court regarding her status as hereinbefore described. The appellant will usually be mentioned hereinafter as 'the claimant' and the defendant and respondent as 'The Coal Company or Employer.' The facts to be considered here are substantially these:

J. Walter Trent was engaged in the extra-hazardous business of mining coal being employed by the defendant coal company in the underground workings of one of its mines at Standsbury, Wyoming. He was working on a loose piece of cap rock in the mine on February 17, 1948, when a portion of it fell and struck him and knocked him 'into the running pan line.' The accident grew out of his employment and was not due solely to the culpable negligence of the employee. His duties were those of 'duckbill operator for mechanical loading crew.' What has been stated above in this paragraph is summarized from the 'Employers' Report of Accident' which appears to be somewhat more complete and detailed in the matters covered thereby than any other reports filed in the matter. A 'duckbill' loader is a mechanical device for loading coal on to a conveyor. Vol. 5 of Encyclopedia Britannica (1950 Ed.) 910, where that text says that the duckbill loader 'can be used even where the place being driven is narrow. The differential movement of the shaking conveyor that pitches the coal forward as does a shovel in the hands of a miner is used to enable the duckbill attachment at the end of the shaking conveyor to dig into the coal. As the duckbill has a flaring mouth and wedged teeth it gets under the pile. As soon as the coal is in the shovel-like duckbill it is carried back toward the room mouth. By arranging for the swivelling of the conveyor it is possible to make the duckbill attachment clear a wide area of coal.' The Dictionary of Occupational Titles, Vol. 1, for March 1949, 2d Ed., page 1017, issued by the U. S. Government Printing Office March 1949 more concisely says that a duckbill operator 'operates a small power shovel that has a roundnosed scoop called a duckbill to load coal into cars' in a bituminous coal mine.

Trent died in the Wyoming General Hospital at Rock Springs the same day he suffered the injuries mentioned above due to the rock-fall already described. Claims for compensation were filed by Ella Mae as a widow of the employee and in behalf of Donald Wayne Trent and James Walter Trent, Jr., by their guardian, Beatrice Trent Taylor, minor children of the employee by a former marriage. It is disclosed by the evidence that claimant herself has several minor children as the issue of her previous marriage to Charles Jordan, from whom she was divorced. If Ella Mae should be determined to be the widow of the employee it is suggested that the Jordan children might possibly be entitled to recover as step-children. If so the maximum allowance would have to be shared between the Jordan and Trent children thereby altering the award to the latter as made by the trial court.

Ella Mae testified that she and J. Walter Trent were married at Forth Smith, Arkansas on November 10, 1945; that they lived together in Oklahoma until her husband, leaving her in Oklahoma, left for Wyoming on May 19, 1947; that on October 24th of that year she obtained a divorce from him in Oklahoma City, Oklahoma; that he did not contribute to her support during the time he left for and remained in Wyoming and prior to this divorce decree.

The Oklahoma divorce decree found that the parties had no children by the Arkansas marriage; that no property had been accumulated by them and that the defendant Trent had been guilty of gross neglect of duty toward the plaintiff, Ella Mae, and that she was entitled to a divorce from him. Her former name of Jordan was also restored to her by that decree. In conclusion this decree as required by the law of Oklahoma, Oklahoma Statutes 1941, Title 12, § 1282, adjudged 'that this decree did not become absolute and take effect until the expiration of six months from the date hereof.'

This special provision of the Oklahoma Statutes has been construed by the Supreme Court of Oklahoma in the case of Barnett v. Frederick et al., 33 Okl. 49, 124 P. 57 where this language is used: 'Kane, J. The only question involved herein is, Does a decree of divorce take effect so as to affect property rights until the expiration of six months from the day and date when such judgment was rendered? The court below answered the question in the affirmative, and we are of the opinion that its answer is correct. That has been the law in this jurisdiction for a great many years.'

The State of Kansas has a similar provision and it has been similarly construed in Durland v. Durland, 67 Kan. 734, 74 P. 274, 63 L.R.A. 959. The third syllabus of the case reads as follows: '3. Upon the rendition of a decree of divorce the relation of husband and wife no longer exists between the parties to the suit, and if one of them should die within six months following the date of the decree the survivor can take no share of the property of the deceased, under the statute of descents and distributions, by virtue of the former relationship.' See Rev.St. Kansas 1923, § 60-1514.

It appears that Trent was twice employed by the coal company; the first time about July 16, 1947 and again on January 2nd, 1948. Shortly before Christmas Day, 1947, he had quit work in the Stansbury mine and had gone to Oklahoma where he stayed in Oklahoma City visiting his two sons and living at his former wife's, (Ella Mae's) home from Christmas Eve, Wednesday the 24th to the following Monday morning, December 29th, when he again departed for Wyoming. It seems he gave Ella Mae several Christmas presents while at her home and, as she testified, they co-habited as man and wife three nights while he stayed there. No marriage license was obtained by these parties on that occasion and no legal marriage ceremony was performed for them during his Christmas visit to Oklahoma City, Ella Mae testifying that she was under the opinion 'that we did not have to do that.' She did not accompany him to Wyoming when he left on the Monday following Christmas Day and thereafter he contributed nothing to her support, she continuing to work as a telephone operator in Oklahoma City until his death on February 17, 1948. During his second period of employment in Wyoming he did, however, send money to Oklahoma City for the support of his own children, the two boys, Donald Wayne and James Walter Trent. After Trent's death claimant came to Wyoming and made certain funeral arrangements the expenses of which were mostly defrayed by the Workmen's Compensation Fund of this State upon Court order made to that effect. We understand that the Wyoming Mortuary has not yet been paid in full.

The cause was tried to the court without a jury and the final judgment and order of award rendered, incorporated the following findings of fact:

'That said J. Walter Trent was injured on the 17th day of February, 1948, at Stansbury, in Sweetwater County, Wyoming, while in the employment of the Union Pacific Coal Company; that said injury was not caused by the culpable negligence of said employee; and that it resulted in the death of said employee on February 17, 1948;

'That said J. Walter Trent and claimant Ella Mae Trent were married to each other on the 10th day of November, 1945 at Fort Smith, Arkansas, but that they were fully and completely divorced from each other at Oklahoma City, Oklahoma, on the 24th day of October 1947; and that at the time of the injury and death of said J. Walter Trent on February 17, 1948, he and claimant Ella Mae Trent were not married to each other by marriage duly solemnized by legal ceremony as required by Sub-section (j) of Section 72-106, Wyoming Compiled Statutes 1945;

'The Court further finds that said Ella Mae Trent, claimant, was capable of earning her own living; that at the time of said employee's injury and death, and prior thereto, she had undertaken to and did earn her own living; that she did not look to said J. Walter Trent for support; and that she was not dependent upon him in fact, to which finding the claimant objects and is allowed an exception.

'The Court further finds that said J. Walter Trent was survived by said Donald Wayne Trent, son, born October 2, 1933, and James Walter Trent, Jr., son, born February 22, 1936, they being the minor children of the workman by a former marriage; and that compensation should be awarded to them in the following amounts:

'Donald Wayne Trent, for three years, seven months and fifteen days, at the rate of $240.00 per year, being $870.00.

'James Walter Trent, Jr., for six years, no months, and five days, at the rate of $240.00 per year, being $1,443.57.'

The judgment and order of award aforesaid entered upon these findings was:

'It is therefore, ordered and adjudged that the claim for compensation of said Ella Mae Trent be, and the same is, hereby denied; and said claimant having made objection to this order, she is hereby allowed an...