Olmstead v. Cattle, Inc.
541 P.2d 49
Wyo.
1975
Check Treatment

*1 wanton, wilful, gross, by caused intentional, reckless, liberate, culpable, or Roger OLMSTEAD, Appellant Noel statute, negligence, breach of (Plaintiff below),

malicious employer other misconduct genuine injury. short of intentional CATTLE, INC., Corporation, al., a Nevada et ” Appellees (Defendants below). No. 4568. development For a of the reasons Supreme doctrine, Wyoming. many cases cited Lar- Court see do not this case son. We consider 1975. Oct. genuine injury

whether intentional even

is outside the cloak of the Workmen’s

Compensation Act. The above rule is use- only purpose approaching

ful for the injury intentional this embrace it. Under the facts of genuine intention- since there was no

al need injury, we not consider whether away injury

intentional does in law take remedy.

the Act as the exclusive Heath- remedy exclusively

er’s as to Delta is with- of the Workmen’s Com-

pensation already Act and held we

she is Heather Delta entitled that.

Drilling supra. defendants, Cadwallader

Womack, their are incorrect assertion protected by likewise ex remedy

clusive afforded the workmen’s

compensation Wyoming laws of and fall employer,

under the Delta mantle their

Drilling Company. It held and settled Williamson, Wyo.1974, Markle v. 621, under the workmen’s com

pensation statutes, co-employee of a de employee

ceased person awas other than immunity employer enjoyed al wrongful suit for death based on

leged negligence, both he and though scope

deceased were active within employment

their at the time of the acci question.

dent in defendants-appellees

Reversed as to all

except Drilling Company; Delta we affirm summary granting

the trial in its Drilling Company to Delta

the sole basis that is covered Compensation ex-

Workmen’s Act which is cir-

clusive of all other remedies

cumstances of case.

THOMAS, Justice. appellant, Roger N.

The Olmstead court), brought district (plaintiff appellees, against American action Pump Granby Company, Billings Pipe and Co., Supply and State Manufac- Stove Company, and six other turing seeking damages to recover for fendants personal injuries that he sustained when appellees pressure exploded. The air tank under individually filed motions to dismiss W.R.C.P., asserting, among lack grounds, other of these defendants. persons court over separate dis- the district court orders Granby Company as a missed American defendant, complaint as party dismissed the Pump Billings Pipe and defendant as to dismissed the cause and Manufac- the defendant State Stove Inc., upon finding turing within the these defendants did not come 5-4.2, W.S.1957, of § Wyo- Cum.Supp., which does authorize ming personal exercise in the in- over nonresident defendants appel- The stances defined the statute. Appeal lant a Notice then filed orders of dismissal. three appellees filed a Mo- In this Court Appeal supported tion Dismiss filed a appellant The Memorandum. to Dis- opposing Memorandum Motion Appeal, appellees miss filed a Re- and the response appel- ply Memorandum basis of these lant’s Memorandum. On the argu- oral pleadings the without ment, to Dismiss Motion has resolved the appellees. Appeal in favor Riverton, Harnsberger, Jr., H. Lee S. by the for ground dismissal asserted Bradley, Billings, Overfelt A. and Charles appellees is the case involves Mont., appellant. for en- were and in the orders Webster, III, Cody, Joseph C. Edward adjudicated tered district court Darrah, Walrath, Powell, E. Louis L. all the liabilities of fewer Thermopolis, Day, Cody, Richard Rich- W. not, in ac- court did parties, but district Davis, Sheridan, ard Jr., M. R.R. cordance with Bostwick,Casper, appellees. a final direct all fewer than more but GUTHRIE, ment as to one or Before J., and Mc- C. * * * * * * upon an CLINTOCK, of the THOMAS, RAPER and (cid:127) no ROSE, that there JJ. upon second sentence of Rule 54(b), W. R.C.P., provides: judgment.” The for the direction “* * * that in the absence appellees contend In the absence of such deter- required by and direction direction, any mination and order or oth- appeal can be decision, er designated, form of however opposing the *3 taken from such orders. adjudicates which fewer than all the appellant Appeal the Motion to Dismiss rights claims or the and liabilities of do orders such as these not contends that fewer parties than all the shall not ter- there require express that any minate the action as of the claims express just delay nor an is no reason for or and the order or other form judgment be- entry of direction for of subject decision is any to revision at as judgments not cause such orders are entry judgment adju- time before the of W.R.C.P., in- 54(a), defined in Rule dicating all the claims and the and the definition stead are meet orders which parties.” liabilities of all the 72(a), set in Rule of forth language This must be read in connection orders, appealable as such and with 58, W.R.C.P., of Rule right under the law. which specify the signals event which any period If of these defendants were sole start of 30-day provided by Rule in 73(a), W.R.C.P., defendant the action the contention of during which a of notice appellant would be well This taken. must be filed. Rule W.R.C. case, however, “multiple is one in which entry P. assumes the of a or fi- involved,” parties are as set forth in the nal specified 58, in Rule and that portion W.R.C.P., of which event did not occur in this instance because conditions discretionary authority of express there was neither the determina- “ * * * entry the court to direct the of tion that just there is no delay reason for a final express as to one or more but nor the entry direction for the * * * fewer all of An order which comes within only upon 54(b) that reach of Rule cannot in be final upon it determines sense that the action and prevents direction for the as those words are used ment.” in Rule because in the does language 54(b) of Rule such an order Historically, the reasoning which “* * * not terminate the action as to adoption led to the of Rule W.R. * * * * * *” any piecemeal C.P. appeals should be “* * * subject it to revision at avoided disruption because of resulting any time before the ad- judicial process. This court on sev judicating and liabili- eral occasions has policy noticed this parties.” ties of all case instant written in support of it. Hospi Lutheran cannot, of the second sentence of tals and Homes Society America v. distinguished on Yepsen, Wyo., (1970); 469 P.2d 409 ground judgments, Harris, Reeves Wyo., v. 380 769 P.2d involved. ; (1963) Cf., Logan Stannard, v. Wyo., 439 court, prior decisions of this some (1968). P.2d 24 Harris, Reeves v. su emphatic, involving of which are while pra, this relying upon a review precise situation, lead to this factual the cases and the notes of the federal ad application construction and visory committee, stated indicated Hospitals in this instance. Luthern the undesirability piecemeal appeals Yepsen, Homes America su- Society v. cases involving more than one claim for pra; Cunningham, Wyo., Ambariantz v. relief multiple parties. Stack, (1969); 460 P.2d 216 v. Whitehouse Co., supra, Dye Tool Quad United Wyo., (1969); Pacific p. said, at beginning v. Martin and Luther Company

Insurance Contractors, Inc., Wyo., 105: 455 P.2d General Pioneer Carissa Spriggs v. (1969); quashing service “While P.2d 400 Mines, Wyo., 453 Gold process ordinarily appealable [citations District Irrigation (1969); Wheatland here, where, dur- omitted], occurs Wyo., Two Bar-Muleshoe Water multiparty litigation, ing the course of ex rel. State (1967); 431 P.2d 257 piecemeal Pacific balance between review Express, Inc. v. District Intermountain expeditious civil dis- resolution of District, Wyo., Court Judicial Second putes making appealabil- is struck Har Reeves v. (1963); P.2d 550 depend ity adjudication upon dis- ris, supra. cretionary District determinations of the *4 provided the by Rule of patterned after is 54(b), Rule Procedure, Rules of Civil Fed.R.C.P., the de Federal and cases 54(b), Rule in in federal such cided the courts

ufacturing, make the stances court must make Company, 1971); Bernardi require or assume express is no Inc., E. Inc., g., Bailey v. just Bros., 441 direction for 427 F.2d 297 express reason F.2d Inc. Rowan v. Pride Man 57 the delay (5th (3rd the Drilling trial Cir. Cir. and of termination judgment, lay and an case that to consider * * *» * [******] * * there is no this court has the merits the absence the District Court just direction of no reason of express to enter for de- appeal. in this Inc., Bar, 1970); 414 F. Dacey v. Florida in instant The orders entered Sears, (5th 2d 195 Coulter v. 1969); Cir. adjudicated case related and Co., (5th Roebuck 411 1189 and F.2d Cir. of than all the liabilities fewer Inc., 1969); Aviation, Farrell v. Piedmont bringing language thus within 1969); 411 F.2d Sullivan v. (2nd 812 Cir. the fore Authority, Delaware River Port F.2d 407 authorities, in the going discussion and (3rd 58 Hills 1969); Beverly Federal Cir. absence of determinations Webb, Savings v. and Loan Association delay and ex just reason for there is 1969); 406 F.2d Aetna In (9th 1275 Cir. press judgment directions for Newton, surance Company v. 398 F.2d 729 in Motion district court’s (3rd 1968); Quad Cir. Peralta v. Tool and granted. Appeal must be Unless Dismiss Dye Co., (3rd 103 370 F.2d Cir. language W. required Inc., 1966); Cohan, Schnur & Mc v. incorporated in an in it an order is R.C.P. Donald, (4th 1964); 328 F.2d 103 Cir. multiple parties dis involving which action Rinker Amalga v. Local Union No. 24 of action as to fewer than all misses the America, mated Lithographers 313 F.2d defendants, over for lack (3rd 956 1963); City Miles v. Cir. defendants, ord is not a final dismissed Chandler, (9th 1961); Cir. 297 F.2d 690 appeal er can taken. from Lopinsky Systems, v. Hertz Drive-Ur-Self Appeal dismissed. Inc., 194 (2nd Cir. 1961); F.2d Tobin Packing North Ameri ROSE, (dissenting). can Car (2nd Corp., F.2d Cir. Justice 1951). Company, Granby In this American McDonald, Manufacturing

Schnur supra, & Cohan v. State Stove Pipe Pump Supply the case Com- most similar Billings in its facts to this presented summary judgment case. situation per- pany here is were dismissed on haps best explained by court determined the court for the reason that Peralta one fewer jurisdiction over the as to or more but that it did not have all . . or . .” because service not effect- claims defendants summary judgment [Emphasis supplied] did ed. The orders for appeal-permitting language not contain 54(a) is the section and definitions (pertaining to contemplated by defines a upon multiple involving or claims rule, which definition is as follows: language is as parties), which fol- is the lows : action. “ . . there is no A direction of court or (pertaining .” judge, writing, or entered in pellate procedure) in a included order.” [Emphasis supplied] (I emphasize the held in We have various cases that if word "order” because that word used the order comes the rule of 54(b), Rule 72 the context what is a appear language aforesaid must in'the appeal order” which an can party parties against if the whom (cid:127) be taken.) summary granted are to be Therefore the one of becomes permitted remaining before whether or not these litigants had the issues determined as dignity judgments] attained the of “final Harris, Wyo., Reeves them. See *5 requiring appeal-permitting thus lan- 769, 770; Irrigation P.2d Wheatland Dis guage 54(b). of Rule This must decid- trict v. Two Bar-Muleshoe Water ed on the basis of are whether or Wyo., 257, 259; Spriggs 431 P.2d Pi rights “final of the of the Mines, Inc., Wyo., determination^] oneer Carissa Gold parties.” If these of dis- (54(a)) orders 400, 401; P.2d Cunning Ambariantz v. finally rights missal do determine the ham, 217; Wyo., 216, finally 460 P.2d parties they of the are final Stack, Wyo., “order[s]” Whitehouse v. 458 P.2d 100. “judgment[s]” and not the contem- the last mentioned case was said: plation of Rule 54. “. . . It is require too well settled to says judgment definition for discussion that be no can judgment that a is the final determination from judgment against a one of rights parties gene- of the finds its parties adjudication or from the of one Fisher, 595, sis in Wyo. Gramm 29 P. of multiple claims without de- 377, court in where this 1891said: termination the trial court as to lack . A final . is the only reason for delay. Not rights termination ” action; 2657, . (§ . . Re- clear, but this spoken repeated- court has of Wyoming vised Statutes 1887 [S.L. ly subject.” on the [Emphasis supplied] 1886, 60, R.S.O., 5310]) ch. 317. § So far concerned, as I am this is the set- Wyo This rule reiterated in was tled holding respect of this court with Wyo., Neizwaag, Treasurer v. ming State Rule 54(b), W.R.C.P. 329, 327, where restated the we problem arises, however, here out of Fisher, supra, rule of and said: Gramm v. whether or not the statutory “. . . Such definition of the on court the motions are “final readopted . . . .” judgments]” concept within the 54(b). If Is a motion granting not “final a rule of the court summary judgment grounds of course for on the 54(b) does not ment^]” ply. I say this for constitute long-arm the reason that statute did not concerns a: “entry itself with an give a service and final ordinarily is An or rule “. . . of the determination of “final record on not founded the whole action;”? 54(a)) (Rule applica- special granted a supplied] [Emphasis ‘motion;’ the a tion to the court called 313, 1, p. 2d, Judgments, In 46 Am § Jur is an motion or- such determination of definitions.”, “Generally; entitled, proceed- special der, judgment. A not a said: order, in a regularly terminates ing final in a last word is the law’s although the anot final bemay It controversy. judicial ... a is in special in a proceeding effect final court’s official as the defined and is sometimes referred consideration supplied] as such." obligations rights respective authority and Wyoming above Under obligations those authority, actual general text as well exist, upon submitted presently matters wording suggest I would proceeding.” in an action to the court motion upon the for that the order based 315, text, page same 3 of the- § concept in the summary judgment bottomed judgments and between distinction is made court did be- that the not have says: where the text statute, long-arm is an “or- cause of the distinguish . . To and cannot be a “judgment” der” and not a desig- its the test is not 54(b). If judgment” under Rule adjudi- nation, hut whether it is a true, this is contention cause, or on a mo- ruling cation the court’s find- movant to the effect that tion, preliminary or collateral to the ings and “order” not contain do fi- ” [Emphasis nal adjudication. that there is no reason for and immaterial irrelevant —becomes and cannot for- any issue involved here 29-30, pp. Judgments In 49 § C.J.S. grounds a dismissal. mulate heading, “Distinguished from under the *6 Orders,” it is Rules and said: even that the court’s It seems more clear rule, general judgments “As are to rulings judgments]” a not when are rules; distinguished contemplated from one Rule 72. Rule orders or does As sets appeals not include other. ... out has to do with distinguished a judgment, an order which an what a “final order” is from may the mandate or determination of the peal be taken this court. subsidiary court on some or collateral says: Rule72(a) action, arising disposing matter in an A final ‘Final Order’ order Defined. merits, adjudicating prelimi- a (1) affecting a substantial is: nary point step in directing some right action, such order in in an when proceedings; on . A prevents effect determines the action hand, other the determination of ajudgment; .”. the court presented by issue pleadings which ab- suggest rulings ascertains and would that the I fixes solutely and finally par- here on the come court motions ties in particular relation to section clearly suit with definition subject puts e., rulings matter in litigation, 72(a), i. these are or- Rule that they end to the disinguishing right suit. The a affecting ders substantial characteristic of a it is jdugment is that the action have determined final, Therefore, while that of an it prevented when re- proceeding action, lates to The rul- appealable under the rule. are is interlocutory, hand, .... the other are not final de- ings, on designate terminations issues To a court’s “order” a “sum- presented by the pleadings. mary judgment” doesn’t “judg- make it a ment” under above rules and cited 72(c), under heading, Rule “Review law. Court,” by Supreme provides: rendered or reasons, For the opinion above it my by the may district be re- court of the lower court part, versed whole or in vacated or properly “order[s],” 72(a), under supreme modified for errors are not final “judgments]”, under Rule appearing on the record.” 54; that the authorities major- cited in the ity opinion generally inapplicable and, therefore, issue here the motion I suggest the majority opinion sim- dismissal of the should be denied. ply distinguish “judg- does between ment” as defined in

and an McCLINTOCK, “order” conceived under law J., concurring in dis- above cited sent.