Weber v. Chicago & N.W. Ry. Co.

• Decision Date: 17 January 1922
• Docket Number: 2861.
• Citation: 278 F. 258
• Parties: WEBER v. CHICAGO & N.W. RY. CO.
• Court: U.S. District Court — District of Wyoming

278 F. 258

WEBER v. CHICAGO & N.W. RY. CO.

No. 2861.

United States District Court, D. Wyoming.

January 17, 1922

John Dillon and G. J. Christie, both of Lander, Wyo., for plaintiff.

P. B Coolidge, of Lander, Wyo., Wymer Dressler and Robert D Neely, both of Omaha, Neb., and Paul S. Topping, of Nebraska City, Neb., for defendant.

KENNEDY District Judge.

This is an action in which plaintiff, as administratrix of the estate of Arthur P. Weber, deceased, sues the defendant for damages on account of the alleged negligence of the defendant in causing the death of plaintiff's intestate at a railroad crossing in the town of Lander, in this state and district.

The answer filed by defendant is in the form of a general denial and a special affirmative defense, by which it appears that plaintiff's intestate, when he met his death, was in the employ of a feed and auto company in the town aforesaid which employment was governed by the Workmen's Compensation Act of Wyoming; that this employer reported the accident under the act as required; that the state court under the provisions of the Compensation Act, thereafter upon a hearing before it adjudicated the award to the plaintiff herein, as the surviving widow of the deceased, in the sum of $2,000, as well as an award of $300 to her as guardian of the minor son of the plaintiff and the deceased employe; that thereafter the plaintiff was paid the said sums out of the fund created and held under the department of the state of Wyoming having charge of the Workmen's Compensation Act, which compensation the plaintiff accepted and received for her use and benefit; that by reason of the aforesaid facts the plaintiff is barred and precluded from maintaining this action against the defendant.

To this affirmative defense set forth in the answer the plaintiff demurred, and the hearing upon the demurrer brings up the point here under discussion, as to whether or not the defense interposed by defendant constitutes on its face a bar to the recovery sought by plaintiff. The decision of the court requires a construction of portions of the so-called Workmen's Compensation Act of this state. Three sections appear to the court to be the only portion of the act necessary for review here. Briefly stated, without quoting the sections verbatim, they provide as follows:

Section 4316 of the Wyoming Compiled States of 1920 provides for the payment of compensation to persons injured in extrahazardous employments as defined by the act, or the dependent families of such as may die as the result of injuries, except where the injury is due solely to the culpable negligence of the injured employe. Section 4317 by its provisions makes the act exclusive, compulsory, and obligatory upon all employers and employes coming within its provisions. Section 4323 provides that, where the employe coming under the provisions of the act receives an injury under circumstances creating a liability in some third party to pay the damages, and there is no legal liability attaching to the employer, in such a case the employe shall be left to his remedy at law against such third party and no compensation shall be payable under the act.

The point in the case is: Considering the fact that the plaintiff has moved under the Compensation Act to receive benefits thereunder and has received those benefits, can she in addition thereto prosecute in the courts an action against the third party alleged to have negligently caused the death of the deceased? It is earnestly contended by counsel for the plaintiff that the Compensation Act is a form of insurance established by law to cover injuries to employes sustained in the course of their employment, regulating by certain set rules the relationship and responsibility as between employer and employe touching such injuries, and is independent of or in addition to any legal rights against third parties. It is contended by the defendant that under the act, if compensation be accepted, it relieves any third party from any liability growing out of the injury or death of the employe.

Modern legislation in most of the states has brought about laws of the character under discussion, but upon this particular point they are greatly at variance, not only in their provisions, but as well in their construction by the several state courts. The Supreme Court of the state of Wyoming has passed upon the law once, in which its constitutionality was sustained in Zancanelli v. Coal & Coke Co., 25 Wyo. 542, 173 P. 981, but that court has not been called upon for a construction of any of the particular sections of the act.

The original English act, from which we adopted the idea, as well as practically the form, of this class of legislation provided that the injured party or his legal representative might in a case of this character have the alternative right to proceed under the act or against the third party. In some states, notably West Virginia, the use of the act, even where no third party is involved, is optional. In Kentucky it would seem that the court has adopted a rather liberal construction of the law, holding that, in the event the party has proceeded under the Compensation Act and also under a suit against the third party, the adjustment of the damages and awards will be taken care...