Boeing Aircraft Co. v. Department of Labor and Industries

• Decision Date: 24 February 1945
• Docket Number: 29388.
• Citation: 22 Wn.2d 423,156 P.2d 640
• Court: Washington Supreme Court
• Parties: BOEING AIRCRAFT CO. v. DEPARTMENT OF LABOR AND INDUSTRIES (FRYE & CO. et al., Interveners).

156 P.2d 640

22 Wn.2d 423

BOEING AIRCRAFT CO. v. DEPARTMENT OF LABOR AND INDUSTRIES (FRYE & CO. et al., Interveners).

No. 29388.

Supreme Court of Washington, En Banc.

February 24, 1945

Proceedings by Boeing Aircraft Company against the Department of Labor and Industries of the State of Washington to review an order transferring all charges for death and injuries suffered by employees of Frye & Company when an airplane manufactured by Boeing Aircraft Company crashed into meat packing plant of Frye & Company, from the meat packing industry to airplane manufacturing industry, wherein Frye & Company, and others intervened. From a judgment confirming the order and dismissing the appeal of the Boeing Aircraft Company, the Boeing Aircraft Company appeals.

Reversed and remanded with instructions.

BEALS C.J., and STEINERT and JEFFERS, JJ., dissenting.

Appeal from Superior Court, King County; Clay Allen, Judge.

Holman Sprague & Allen and J. Paul Coie, all of Seattle, for appellant.

Smith Troy, L. E. O'Neill, and Harry L. Parr, and of Olympia (note: Mo. O'Neill died, and Mr. Parr argued the case) for Department of Labor and Industries, respondent.

W. S. Greathouse, Almon Ray Smith, Allen, Hilen, Froude & DeGarmo, Tim Healy, and Preston, Thorgrimson, Turner, Horowitz & Stephan, all of Seattle (note: Ryan, Askren & Mathewson, of Seattle, appeared, but did not file a brief), for other respondents.

MILLARD Justice.

An airplane which was constructed in the plant of Boeing Aircraft Company, while on a trial flight February 18, 1943, in sole charge of employees of the aircraft company, crashed onto the meat packing plant of Frye & Company at Seattle, Washington. As a result of the crash and the immediately ensuing fire all of the members of the crew of the airplane and twenty employees of Frye & Company were killed and twelve were injured. Claims by dependents of those workmen who had suffered death and claims by injured workmen were filed with the department of labor and industries of this state and were allowed in varying amounts.

Boeing Aircraft Company and Frye & Company were employers engaged in extrahazardous industry under the state workmen's compensation act and at the time of the accident the employees of both companies were engaged in extrahazardous employment. The aircraft company was a contributor to the industrial insurance fund under class 34-3 as a manufacturer of airplanes. Frye & Company and the other intervenors were contributors to the industrial insurance fund as members of class 43-1. The aircraft company and intervenors had paid all payroll premiums due and had fully complied with the requirements of the industrial insurance statute. The director of the department of labor and industries directed the supervisor of the industrial insurance March 20, 1943 to transfer all charges for death and injuries suffered by Frye & Company employees from the meat packing industry, class 43-1, to the airplane manufacturing industry, class 34-3, to which latter class Boeing Aircraft Company was the sole contributor.

Frye & Company's meat packing plant, which was the scene of the accident, is located in the southern portion of the city of Seattle two or three miles north of Boeing Aircraft Company's manufacturing plant. There has never been any factual or legal relationship between Boeing Aircraft Company and Frye & Company, each company being engaged in an industry entirely different from that in which the other is engaged.

June 14, 1943, the joint board of the department, Before which the matter was brought upon the aircraft company's objection to the order to transfer charges for deaths and injuries suffered by Frye & Company's employees to the airplane manufacturing industry, sustained the ruling of the director. From that order the aircraft company appealed to the superior court for King county whereupon Frye & Company, by leave of court, intervened in the proceeding, as did Armour & Company, a corporation engaged in the business of packing meat, and four other corporations belonging to the same classification. The intervenors were interested in the proceeding by reason of the fact that if the cost of the accident were charged by the department to class 43-1 they would all be required to bear proportionate parts of the payments to the fund.

Trial of the cause to the court resulted in entry of a judgment confirming the order of the joint board, which affirmed the order of the director of the department charging class 34-3 with the workmen's compensation costs of the accident and dismissing the appeal of the aircraft company from the order above described. Boeing Aircraft Company appealed.

At the threshold of this appeal is the motion of respondents Frye & Company and James Henry Packing Company to strike the statement of facts for the reason that same was not filed in the office of the clerk of the superior court until the ninety-first day after the entry of the judgment from which the appeal is prosecuted, or one day too late.

It is not material whether the motion to strike the statement of facts is granted, as a statement of facts is not necessary in cases of this character. Under the statute, Rem.Rev.Stat. § 7697, we held in Murray v. Department of Labor and Industries, 151 Wash. 95, 275 P. 66, and Dry v. Department of Labor and Industries, 180 Wash. 92, 39 P.2d 609, that an appellant would not be permitted on the hearing in the superior court to offer, and the court was forbidden to receive in support of the appeal from the department, evidence or testimony other than, or in addition to, that offered Before the joint board or included in the record filed by the department. The departmental record was duly filed in the superior court and upon appeal from the department became a part of the record therein. It is properly in the record Before this court to which it was brought as a part of the transcript on appeal.

We held in Reid v. Department of Labor and Industries, 194 Wash. 108, 77 P.2d 589, where as in the case at bar, it appeared that the cause was submitted to the trial court upon the departmental record, that we had Before us all the evidence upon which the court functioned, therefore no statement of facts was necessary. One year subsequent to the filing of our opinion in Reid v. Department of Labor and Industries, supra, the legislature enacted a statute, Laws of 1939, chapter 184, Rem.Rev.Stat. § 7697-2, which provides that in appeals to the superior court from any order, decision or award of the joint board of the department of labor and industries no party to the appeal shall be permitted to introduce evidence in court in addition to that contained in the departmental record. The statute prohibits the introduction of any evidence by any party upon the trial in the superior court, hence we have Before us all the evidence upon which the court could legally function.

As the only facts that may be considered are in the departmental record, which is Before this court, a statement of facts is unnecessary to enable us to consider questions of fact; and, in any event, the sole question raised by this appeal is one of law. It is clear that the conclusions of law and the judgment are not supported by the findings of fact, which are as recited herein.

Certain employees of Frye & Company, a corporation within the extrahazardous employment classification, were killed and others injured as the result of the crashing onto the plant of Frye & Company of an airplane belonging to and under the control of Boeing Aircraft Company, a corporation, which was also within the extrahazardous employment classification. Both corporations had complied with provisions of the workmen's compensation act, which affords an employer immunity from suit by a workman injured while in the course of extrahazardous employment. Under the foregoing facts, should the cost experience of the accident be charged to Frye & Company, the employer of the workmen killed or injured, and its class of employers, or to the third party employer, appellant aircraft company and its class?

It is clear from a reading of the workmen's compensation act and our opinions interpreting same that every hazardous industry within the purview of the workmen's compensation act should bear the burden arising out of injuries to its employees regardless of the cause of injury, and that it was never contemplated that each class should be liable for the accident caused by such class, but that each class as the statute provides shall meet and be liable for the accidents occurring in such class.

Industrial insurance was introduced into our statutory law by Laws of 1911, chapter 74, which is an act relating to compensation of injured workmen. Section 1 of the statute cited declares the act to be an exercise of the police and sovereign power of the state and recites the unfortunate conditions which demanded remedial action by the legislature. The statute was first considered by us in State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, on page 175, 117 P. 1101, 37 L.R.A.,N.S., 466, in which we said that the act was founded on the basic principle that certain defined industries, designated in the act extrahazardous, should be made to bear the financial losses sustained by the workmen engaged therein through personal injuries, and that the purpose of the act was to furnish a remedy which would reach every injury sustained by a workman engaged in any of such industries, and make a sure and certain award therefor, bearing a full proportion to the loss sustained, regardless of the manner in which the injury was received.

In State v. Mountain Timber Co., 75 Wash. 581, 135 P 645, L.R.A.1917D, 10, we held that the workmen's compensation act was constitutional. T...