Markle v. Williamson

¶1(dissenting).

¶2It is always an unfortunate circumstance that a concept which has been followed by the public for many years as the result of legislative action, subsequently interpreted by the court, should be overturned because the same court which made the original interpretation changes its viewpoint. Such a reversal of position destroys rather than supplies the dependability upon which our citizens have a right to rely. In a situation of that nature if a change in the law is desired, the people, acting through their duly elected representatives, should make it, providing thereby both an opportunity for the majority of electors to make their wishes known and an orderly transition, allowing time for essential adjustments.

¶3The rule which requires that the judicial department should adhere to any position it adopts (and that any new concept be initiated by the legislative body) is known as stare decisis, and many are the pronouncements on the subject. One of the earlier ones was made in 1897 when Judge Potter in Guthrie v. Board of Com’rs of Converse County, 7 Wyo. 95, 50 P. 229, 230, said:

“ … a previous well-considered decision of the supreme court … should not be lightly disturbed or departed from … [;] unless it is quite clear that manifest error has crept into such a decision, it should be allowed to stand. Any other policy would operate to continually unsettle such matters, and judicial decisions concerning them would not be credited with much stability, or be *627entitled to that respect which they ought to command. … ”1

¶4The real question before this court is whether or not an employee covered by the Workmen’s Compensation Law may maintain a direct action for ordinary negligence against a co-employee.2 The answer requires interpretation of s’ections of 'the statutes:

“ … 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. … ” § 27-50, W. S.1957.

“The rights and remedies provided in this act for an employee on account of any injury shall be exclusive of all other rights and remedies, at common law or otherwise, of such employee, his personal or legal representatives or dependent family on account of such injury; and the terms, conditions and provisions of this act for the payment of compensation and the amount thereof for injuries sustained or death resulting from such injuries shall be exclusive, compulsory and obligatory upon both employers and employees coming within the provisions hereof.” § 27-51, W.S.1957.

“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 … § 27-54, W.S. 1957,1973 Cum.Supp.

¶5In last analysis the decision in this case turns upon an interpretation of the words “in some person other than the employer” in § 27-54. This point was settled in the carefully considered 1939 case of In re Byrne, 53 Wyo. 519, 86 P.2d 1095, which held that a fellow employee was included in the word “employer” in the statute which has since become § 27-54.3 Those who contend to the contrary must explain why in the thirty-five years since the Byrne case was decided both the Workmen’s Compensation .Department and the general public have proceeded as if such rule were operative with no questions having been raised on the subject until 1973 when the issue was resolved consonant with the Byrne decision by a divided court. Blackwell v. Pickett, Wyo., 490 P.2d 347.

¶6As Judge Gray well said in School Districts Nos. 2, 3, 6, 9, and 10, in County of Campbell v. Cook, Wyo., 424 P.2d 751, 758, in referring to an interpretation given by an administrative agency:

“ … a contemporaneous construction over a period of years, unless clearly erroneous, must … be given weight. …”

¶7To a similar effect is Kearney Lake, Land & Reservoir Company v. Lake DeSmet Reservoir Company, Wyo., 487 P.2d 324, 326-327.

¶8It serves no purpose to discuss at length the various statutes of other jurisdictions concerning workmen’s compensation and seek to draw some general rule from them since they are so diverse in wording and even in objectives. Likewise it profits lit-*628tie to point out the states which under statutes and constitutions more or less similar to Wyoming hold that a fellow employee is included in the word employer as we did in the Byrne case or where the contrary is true, i. e., to count noses. Neither these aspects, the equities of the situation, nor the probable economic and social effects should have a place .in deciding this case. But if so, it goes without saying that the result of the majority opinion by overturning the long-standing concept of the Byrne opinion will drastically affect both employers and employees, requiring an entire rearrangement of matters vitally important to each. Accomplishing such a radical change is the proper function of the people acting through their legislative representatives. The “judicial tinkering” which the majority disclaims, but nevertheless effects, will produce chaos which I can only hope will be alleviated by positive action of those rightfully entitled to make the determination.

¶9The judgment of the trial court should be reversed.