Jоseph J. MEYER, Joseph L. Meyers, Donnie R. Haney, Dale Saathoff, and Dan Muirhead, Appellants (Defendants), v. Pamela Sue KENDIG, Appellee (Plaintiff)
No. 5554
Supreme Court of Wyoming
March 12, 1982
641 P.2d 1235
Finally, I cannot adopt the position taken by Justice Thomas in his concurring opinion, since he would only give stаnding to a biological father who arguably would not desire to establish the father-child relationship in the first place.
I would have reversed.
Wade Brorby and Thomas D. Roberts, of Morgan & Brorby, Gillette, and Michael A. Williams and Craig R. Maginness, of Sherman & Howard, Denver, Colo., attys. in good standing, Bar of Colorado, for appellants.
Carl L. Lathrop and Nick Kalokathis, of Lathrop & Uchner, P. C., Cheyenne, filed an amicus curiae brief on behalf of The Wyoming Mining Association.
Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., and Carl J. Hildebrand, Asst. Atty. Gen., filed an amicus curiae brief on behalf of the State of Wyoming.
J. N. Murdock, of Vlastos, Reeves & Murdock, P. C., Casper, filed an amicus curiae brief on behalf of the Defense Lawyers’ Association of Wyoming.
Donald J. Sullivan, Stephen H. Kline, and Sharon A. Fitzgerald, Cheyenne, filed an amicus curiae brief on behalf of The Wyoming Trial Lawyers Association.
Before ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and GUTHRIE, J., Ret.
ROONEY, Justice.
This aрpeal is from a judgment rendered on a jury verdict which found that appellee-plaintiff‘s injuries were caused in part by the negligence of appellants. One of the issues presented on appeal is whether or not the trial court erred in denying appellants’ motion to strike the allegations of ordinary negligence in the complaint as improper under
Appellants are co-employees of appellee. All were employees of AMAX Coal Company. Appellee was employed as a truck driver on a surface mining operation in Campbell County. She was injured in a collision with a truсk being driven by appellant Muirhead. The negligence of the other appellants was alleged to consist of failure to adequately train appellant Muirhead, allowing him to drive with a hearing impediment, and requiring a blind side backing procedure at a dump site. Appellant Meyer was the Assistant Mine Superintendent. Appellant Meyers was the third-shift General Foreman. Appellant Haney was the Mine Safety Representative. Appellant Saathoff was the third-shift Stripping Foreman.5
Other than the constitutional issue, we will address those other issues presented on this appeal which will probably again arise in further proceedings in this case, Chicago and N.W. Ry. Co. v. City of Riverton, 70 Wyo. 119, 247 P.2d 660 (1952); McGuire v. McGuire, Wyo., 608 P.2d 1278 (1980). Facts relative thereto will be set out in connection with the discussion thereof.
CONSTITUTIONALITY OF § 27-12-103(a), W.S.1977 6
Prior to an amendment in 1914,
“* * * [T]he legislature was substituting one entirely new system for another that it deemed unwise and not meeting justly and equitably the circumstances of present-day employments, in providing certain and speedy relief without the difficulty, expense and delays of litigation.” Stephenson v. Mitchell, Wyo., 569 P.2d 95, 98 (1977).
See Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981); Zancanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918); 1 Larson, Workmen‘s Compensation Law, §§ 4, 5; 99 C.J.S. Workmen‘s Compensation, § 5; 81 Am.Jur.2d Workmen‘s Compensation, § 2; Pan American Petroleum Corporation v. Maddux Well Service, Wyo., 586 P.2d 1220 (1978).
Before a 1975 amendment, the Worker‘s Compensation Act did not refer to immunity for co-employees as does
The Markle v. Williamson opinion, supra, brought an immediate reaction from the legislature. At its next session, it placed into the act the present language relative to immunity of co-employees for all but culpable10 negligence.11 We are now presented with a question as to the constitutionality of such legislative action.
When the constitutionality of a statute is assailed, we are governed by the following standards:
“Statutes are presumed to be constitutional unless affirmatively shown to be otherwise, and one who would deny the constitutionality of a statute has a heavy burden. The alleged unconstitutionality must be clearly and exactly shown beyond any reasonable doubt. Stephenson v. Mitchell ex rel. Workmen‘s Compensation Department, Wyo. 1977, 569 P.2d 95, 97; see also cases digested at West‘s Wyoming Digest, Constitutional Law, [REDACTED] One who assails a classification must carry the burden of showing that it does not rest on a reasonable basis, but is essentially arbitrary, and if any state of facts can be reasonably conceived which sustain the classification, such facts will be assumed. Mountain Fuel Supply Co. v. Emerson, Wyo. 1978, 578 P.2d 1351, 1355; McGowan v. State of Maryland, 1961, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Carmichael v. Southern Coal & Coke Co., 1937, 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245, 109 A.L.R. 1327. *** Nickelson v. People, Wyo., 607 P.2d 904, 910 (1980).”
“Courts have a duty to uphold the constitutionality of statutes which the legislature has enacted if that is at all possible, and any doubt must be resolved in favor of constitutionality. Witzenburger v. State, Wyo. 1978, 575 P.2d 1100, 1112; Lund v. Schrader, Wyo. 1971, 492 P.2d 202, 206. *** Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310, 319 (1980), reh. denied, cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980).”
And since an ordinary interest is involved in this case, the following standard also applies:
“* * * When an ordinary interest is involved, then a court merely examines to determine whether there is a rational relationship between a classification made by the statute or statutes being viewed and a legitimate state objective. ***” Washakie County School District Number One v. Herschler, supra, 606 P.2d at 333.
Given the basic thrust of the Worker‘s Compensаtion Act - speedy relief for the worker for work-related injuries without the difficulty, expense and delays of litigation, Stephenson v. Mitchell, supra, - it would seem incongruous to make the same worker liable for his ordinary negligent acts during employment. Such a penalty would not only result in a work place of questionable harmony and in hundreds of legal actions, but it would subject the Worker‘s Compensation Act to a doubtful future. If co-employees are to be held liable for ordinary negligence in the work place and are required to bear the loss and pay the judgments, the employer will receive a direct benefit by the subrogation rights of the worker‘s compensation fund, which directly affect the premiums paid by the employer,
The trial court put emphasis on
“The prohibition against special legislation does not mean that a stаtute must affect everyone in the same way. It only means that the classification contained in the statute must be reasonable, and that the statute must operate alike upon all persons or property in like or the same circumstances and conditions. ****” Mountain Fuel Supply Company v. Emerson, Wyo., 578 P.2d 1351, 1356 (1978).
In the brief and argument, appellee also contends
OTHER ISSUES
Of the five other issues presented on appeal by appellants, two of them are unlikely to be pertinent in a new trial. The exclusion of Exhibit KK (alleged as error) was premised on surprise engendered by its late discovery.18 The element of surprise will not be present at the new trial. If the jury instruction is again given setting forth plaintiff‘s life expectancy from the time of the accident (alleged as error) rather than from the time of the trial, appellants can request special interrogatories or pertinent questions on a special verdict form which will evidence whether or not there is a double recovery of damages.
Appellants allege error in two respects relative to the exclusion of evidence concerning appellee‘s prior felony record. They word the issues as follows:
“Whether the trial court committed reversible error by refusing to allow Defendants’ counsel to cross-examine Plaintiff with respect to her prior felony record pursuant to Wyoming Rule of Evidence 609.”
“Whether the trial court committed reversible error by refusing to allow Defendants’ counsel to cross-examine Plaintiff, pursuant to Wyoming Rule of Evidence 608, with respect to false statements which she made on two previous employment applications, Plaintiff‘s Exhibit 43 and Defendants’ Exhibit H, as to whether she had been convicted of a felony.”
Appellee had been convicted in Ohio of the crime of burglary and breaking and entering, a crime punishable by imprisonment in excess of one year. After serving sixty days in the Ohio State Reformatory for Women, she was released on parole. The parole was transferred to Wyoming when she moved to Wyoming. A few days before commencement of the trial, the Ohio court ordered an expungement of her criminal record on the basis of rehabilitation.
Appellants argue that the Ohio court‘s order was inaccurate inasmuch as appellee had pled nolo contendere to charges of petit larceny, assault and battery and breach of peace subsequent to the conviction in Ohio, and that, therefore, rehabilitation was not accomplished.
Appellants also argue that they were improperly denied cross-examination of appellee concerning the truth of a “no” answer to questions as to whether she had been convicted of a felony on her employment applications to AMAX Coal Company and to Anaconda Copper Company.
“(a) General rule. - For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from
him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
* * * * * *
“(c) Effect of pardon, annulment, or certificate of rehabilitation. - Evidence of a conviction is not admissible under the rule if (1) the conviction has been the subject оf a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted * * *.” (Emphasis added.)
“(b) Specific instances of conduct. - Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in
Rule 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness * * *.” (Emphasis added.)
Both rules make the admission of such evidence to be in the discretion of the trial court. Reversible error would exist only if there was an abuse of discretion.
“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. ***” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).
The trial court gave considerable attention to the problem. It was not beyond the bounds of reason for it to make a determination that the probative value of the evidence would not outweigh its prejudicial effect under the circumstances. We do not agree with appellants’ contention that inquiry should be made as to the merits behind the Ohio court‘s order. The finding of rehabilitation was made by the Ohio cоurt. The expungement order issued. The crime, the conviction, the sentence, the service of the sentence, and the expungement thereof, were all matters for determination by the Ohio courts. Their action relative thereto was properly presented to the trial court. There was no contention of lack of jurisdiction or of due process by the Ohio courts. The trial court properly gave full faith and credit to the determination of the Ohio court.19 The requirements of
It was not unreasonable for the trial court to exercise its discretion in refusing to allow cross-examination concerning the answers made by appellee on the employment applications when such answers would result in the introduction of evidence which
There was no abuse of discretion.
Finally, appellants allege error with reference to the admission into evidence of Exhibit 5, a report of Federal Mine Inspector Iszler. The report was admitted pursuant to
Under the heading of “negligence,” boxes on the report were checked which reflected that the condition “should have been known to the operator,” the act or omission was “by non-management personnel,” was “by management personnel,” was “under the direct operation of management,” and was “against posted or published instructions at the mine.” After Exhibit 5 was admitted into evidence over objection, Mr. Iszler testified in part as follows:
“Q. Now, Mr. Iszler, at the time - the evidence at the time that you signed or filled out those boxes, what was your understanding with respect to the pattern for approaching to back that was being used? Was it a 270-degree turn and back or a 90-degree turn and back?
“A. 270-degree turn, sir.
“Q. If, in fact, it was a 90-degree turn and back, would that change the boxes that you would have checked?
“A. Yes, sir. Had I known that, that would have changed that.
“Q. In what way?
“A. Instead of checking all four of the checks under negligence, number two, the act or omission was - I would have checked number one, which I have checked here.
“Q. Uh-huh.
“A. ‘By non-management personnel.’ I would have excluded number two, ‘By management personnel.’ I would have excluded number three, ‘Undеr the direct observation of management.’ I would have checked number four, ‘Against posted or published instructions at the mine.‘”
At the new trial and in view of this testimony, the trial court might find that the report lacked sufficient trustworthiness to be admissible. But, beyond that, the report is inadmissible as expressing an opinion or conclusion on negligence - the very issue to be decided by the jury.
We recognize that there is a conflict of authority on the question of whether or not opinions and evaluations in official reports, as opposed to purely factual findings, are admissible under
“*** In a negligence case, a report stating barely that defendant was negligent should probably be excluded, but a statement that he was traveling at a certain speed probably should not be even though in one sense this is certainly a conclusion. ***” 4 Weinstein‘s Evidence, § 803(8)[03], p. 803-205.
See Baker v. Elcona Homes Corporation, 588 F.2d 551 (6th Cir. 1978), admitting re-
Exhibit 5 should not have been received into evidence or the reference therein to opinions as to the ultimate question of whether or not appellants were negligent should have beеn deleted or blocked from the exhibit before such receipt.
Reversed and remanded for a new trial.
ROSE, Chief Justice, dissenting.
As discussed in the majority opinion, this appeal presents a question concerning the constitutionality of
“No 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.”
The amendment made room for the worker‘s compensation concept by authorizing the legislature to enact a scheme whereby the employee gave up all of his or her common-law rights of action against the employer, in return for the guarantee that the employer would contribute to a fund from which the employee could receive direct compensation for all work-related injuries except those where it could be shown that the employee was culpably negligent. From the inception of worker‘s compensation in Wyoming, this court consistently construed the statutes as enacting a form of industrial insurance which authorized compensation in the nature of accident insurance rather than in the nature of damages. Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981); Markle v. Williamson, supra, Zancanelli v. Central Coal & Coke, supra; Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542 (1925). The decisions of this court even went so far as to ignore provisions in the statutes which could not be reconciled with the concept of industrial accident insurance.3 Through these opinions we have irrefutably established the proposition that the Wyoming Worker‘s Compensation Act stemmed from contract and not from notions of tort. As we said in Markle v. Williamson, supra, 518 P.2d at 624:
“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, 511, 981, 989 is that our Workmen‘s Compensation Act is in contract and not in tort.”
Not until the decision in Stephenson v. Mitchell, supra, did this court permit the law of tort to seep back into the worker‘s compensation scheme. I pointed this out in my dissent in that case. In Stephenson, the majority of the court upheld the reimbursement provision of § 27-54, W.S.1957, now embodied in
Likewise, in the present appeal, the majority have permitted the legislature to extend the immunity or protections of the worker‘s compensation program to areas not given or intended by the constitutional amendment which grants authority to the legislature to enact a worker‘s compensation statute. The wrong conclusion is reached, in this case, by asserting a new purpose for worker‘s compensation - that being the advancement and support of employee harmony. Never before have we asserted such a legislative purpose, because it is inherently inconsistent with the idea that worker‘s compensation derives from contract and not tort and, furthermore, it embraces a faulty factual assumption. Proof of this becomes clear when the facts of Markle are revisited. The notion of employee harmony - when applied to Markle, as an example - emerges as a pure figment of judicial imagination. In that case, any prior good management-employee relationship had long since been shattered through the unbelievable and continuing negligence of Supervisor Markle prior to the time when the tank blew up killing Williamson.
The majority support their decision to the effect that
Similar to the reimbursement provision attacked in Stephenson,
The purpose of worker‘s compensation in Wyoming was to provide the worker or his
I would have held that
Notes
“The rights and remedies provided in this act [§§ 27-12-101 to 27-12-804] for an employee and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer making contributions required by this act, or his employees acting within the scope of their employment unless the employees arе culpably negligent, but do not supersede any rights and remedies available to an employee and his dependents against any other person.”
The split in Markle v. Williamson, supra, occurred because two members of the court had concluded that“All laws of a general nature shall have a uniform operation.”
See n. 4 of the majority opinion, at 1236-1237.“The legislature shall not pass local or special laws in any of the following enumerated cases *** for limitation of civil actions * * * granting to any *** individual *** any special or exclusive privilege, immunity or franchise ***”
For instance, in In Re Byrne, 53 Wyo. 519, 86 P.2d 1095 (1939), and Hotelling v. Fargo-Western Oil Co., supra, we held that the employer could not avoid payment of a claim through the device of claiming he was free of fault and that a third party was directly responsible for the injury or death, because such a device could not be reconciled in any way with the idea that “worker‘s compensation” was in the nature of an insurance contract. In expressing such a viewpoint, we were forced to directly ignore the literal import of former § 8 of Chapter 124, S.L. of Wyoming 1915 which specifically permitted the use of such argument as an avoidance device.“No 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 аccumulation 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 deаth.”
Youngbauer ..................4%
Meyer .......................6%
Van Dyke ....................8%
Meyers .....................10%
Haney ......................12%
Saathoff ...................18%
Bisher .....................18%
Muirhead ...................24%
“All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.”
“For any injury to person or property caused by wilful failure to comply with the provisiоns of this article, or laws passed in pursuance hereof, a right of action shall accrue to the party injured, for the damage sustained thereby, and in all cases in this state, whenever the death of a person shall be caused by wrongful act, neglect or default, such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and the legislature shall provide by law at its first session for the manner in which the right of action in respect thereto shall be enforced.”
The reference to the “provisions of this article” is tо establishment of the office of mine inspector and of a state geologist, restriction on employment of women and of boys under the age of fourteen years, establishment of courses to be taught on mining and metallurgy and directing the legislature to provide by law for the “proper development, ventilation, drainage and operation” of mines.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. ***”
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * * * *
“(8) Public records and reports. - Records, rеports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”
“(6) Records of regularly conducted activity. - A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”