Markle v. Williamson

518 P.2d 621, 1974 Wyo. LEXIS 183

• Court: Wyoming Supreme Court
• Decided: February 1, 1974
• Docket: 4260
• Status: Published

Opinions

Justice McINTYRE

delivered the opinion of the court.

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 compliance 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.

law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person. Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void. As to all extra-hazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation as may be fixed by law according to proper classifications to each person injured in such employment or to the dependent families of such as die as the result of such injuries, except in case of injuries due solely to the culpable negligence of the injured employee. Such fund or funds shall be accumulated, paid into the state treasury and maintained in such manner as may be provided by law. The right of each employee to compensation from such fund 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 person or persons by reason of any such injuries or death.”

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 enactment. 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:

“Where an employee coming under the provisions of this act receives an injury under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee if engaged in extra-hazardous work for his employer at the time of the injury, shall not be deprived of any compensation which he would otherwise receive under this act. He may also •pursue his remedy at law against such third person, except he shall not be entitled to a double recovery for the injury or injuries for which he has been paid compensation under this act or under orders of the district court. * * *

⅝ ⅜ ⅜ ⅝ ⅜ ⅜

“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 Statutes

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.

If courts require clear and precise language before they will allow compensation rights to be taken away, they should require clear and precise language before they permit common-law rights (such as the right to sue a co-worker) to be taken away. As stated in 2 Larson’s Workmen’s Compensation Law, § 72.10, p. 171, under most statutes, immunity to common-law suits is extended only to the employer. ' An injured employee can therefore sue a co-employee for negligence. The writer points out that this result is supported by reference to the plain language of the statute; by argument that existing rights of action should not be deemed destroyed in the absence of clear language; and by the moral principle that a tortfeasor should not be relieved of the consequences of his own wrongdoing.

In order to justify a baseless result and disallow suits against fellow employees, some courts have adopted a bald-faced fiction, stating flatly that a co-employee becomes merged in the employer and is not a “third person.” There is no basis for such a contention in Wyoming. Also, we do not accept appellant’s position that suit by an employee against a co-employee, in tort, is barred for the reason that the co-employee has the same immunity from suit as does his employer.¹ The question is, was Mar-kle a “person other than the employer” ? We say he was.

Madison v. Pierce, 156 Mont. 209, 478 P.2d 860, is relied on by appellant. The Montana court in that case, however, based its decision on a fault concept which says there should be “enterprise liability” and “enterprise immunity.” It reasons that the negligent co-employee, being a member of the enterprise, enjoys the safeguards and immunity enjoyed by the enterprise as a whole. The court recognized and expressly stated its holding represented a minority opinion on the subject.

The logic and reasoning of the Madison case cannot apply in Wyoming because the Wyoming Supreme Court has more than once held that the Wyoming Compensation Act is in the nature of accident insurance and is not intended to give compensation as damages.² Also, in Wyoming, under § 27-54, the common-law rights of action against third persons (including employees) is reserved specifically to injured workmen and to the heirs of a deceased employee.

To say that workmen’s compensation in Wyoming is in the nature of insurance is to say it stems from contract. Indeed, the clear implication in Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989, is that our Workmen’s Compensation Act is in contract and not in tort. However, a fellow employee is one who has contributed nothing to the compensation fund. He has no contract and no immunity. The employer has contributed and he has immunity. To argue that the employer’s immunity attaches to a co-employee who, through his negligence, has injured or killed a fellow workman ignores all rules of common sense and sound logic.

Although the court, in Pittsburgh-Des Moines Steel Co. v. American Surety Company of New York, 10 Cir. (Wyo.), 365 F.2d 412, 416, was not dealing with a fellow employee case, it did pass on the exclusive nature of the remedy under Wyoming’s Workmen’s Compensation Act, saying that such remedy extended only between the contributing employer and the injured or deceased employee. If exclusive remedy coverage has been extended only between the contributing employer and the injured or deceased employee, it is difficult to argue that the workmen’s compensation law affords an exclusive remedy for a workman injured by the negligent act of a fellow employee.

The Constitution

When Wyoming reached the time that it needed a workmen’s compensation law, there was an obstacle. Art. 10, § 4, of the Wyoming Constitution provided:

“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”

Hence, if the contemplated law was to provide for limited compensation benefits and make those benefits sole and exclusive remedies, an amendment to Art. 10, § 4, was necessary. Therefore, the legislature proposed and the voters ratified the 1914 amendment. Nothing in § 4 was changed, however, except that the legislature was directed to provide for a compensation fund out of which compensation benefits were to be paid. It was provided that the right of each employee to compensation would be in lieu of and take the place of any and all rights of action against any “employer contributing” to the fund.

As to a contributing employer, compensation from the fund was made the sole and exclusive remedy for a covered workman. It is entirely clear, however, that, nothing was changed with respect to a fellow employee. The amendment being in 1914 when industrial suits were quite infrequent, it would appear the situation with respect to co-workers was not dealt with. The result is that common-law rights (such as the right of a worker to sue a fellow employee) remained unchanged; and that right continues to this time.

In Kilpatrick v Superior Court, 105 Ariz. 413, 466 P.2d 18, 27, the Arizona Supreme Court had this to say about the role of courts and judicial tinkering:

“Courts are not at liberty to impose their views of the way things ought to be simply because that’s what must have been intended, otherwise no statute, contract or recorded word, no matter how explicit, could be saved from judicial tinkering. Moreover, if the sense of a word is not to be taken in its usual and commonly understood meaning except under circumstances where a different meaning is clearly intended, it becomes impossible for men to mean what is said or say what they mean and purposeful communication is unattainable.”

We would be guilty of judicial tinkering if we tried to give to § 27-54, W.S.1957, 1973 Cum.Supp., and §§ 27-50 and 27-78, W.S.1957, or to Art. 10, § 4, as amended, an interpretation differing from the plain and unequivocal language used in these provisions.

When plain and ordinary meaning is given to the statutes and to Art. 10, § 4, it becomes clear that no change has been made in the common-law right of a workman to sue a co-employee and the judgment of the district court ought to be affirmed.

Affirmed.

1 . This theory was followed by the Supreme Court of Idaho in White v. Ponozzo, 77 Idaho 276, 291 P.2d 843. However, the Idaho decision is subject to criticism because it relied on cases from New York, Virginia, North Carolina, Washington, Oregon and Ohio, all of which had statutes expressly extending immunity at least as far as to co-employees. Also, the Supreme Court of Florida, in Carter v. Sims Crane Service, Inc., Fla., 198 So.2d 25, relied on Oregon, Virginia and Massachusetts cases, with no regard for the decisive difference in statutory background.

2 . Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981, 989; Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542; In re Byrne, 53 Wyo. 519, 86 P.2d 1095, 1101; Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 337.