Carl v. Department of Labor and Industries, 31184

• Decision Date: 19 July 1951
• Docket Number: No. 31184,31184
• Citation: 38 Wn.2d 890,234 P.2d 487
• Court: Washington Supreme Court
• Parties: CARL, v. DEPARTMENT OF LABOR AND INDUSTRIES.

Page 890

38 Wn.2d 890

234 P.2d 487

CARL, v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 31184.

Supreme Court of Washington, en Banc.

July 19, 1951.

Walthew, Gershon, Yothers and Warner, Seattle, for appellant.

Smith Troy, Millard C. Thomas, Olympia, for respondent.

HAMLEY, Justice.

This is a motion for substitution of the widow of appellant as plaintiff-appellant, following appellant's death pending this appeal. The motion was heard by Department One and was denied, no opinion being issued. A rehearing was thereafter granted, and the motion was argued to the court sitting En Banc.

George L. Carl, the deceased workman herein, was injured April 9, 1946. The department of labor and industries found that his condition was related to his weak heart and not to his injury. The claim was therefore closed without any permanent partial disability award. On appeal, the joint board sustained the department and dismissed the appeal. Carl then appealed to the superior court. At the beginning of the trial, respondent's motion to dismiss was denied without prejudice to the renewal of the same after the verdict.

The transcript reveals that the jury returned a verdict in favor of the plaintiff, but does not indicate the nature of the verdict. Respondent's answer to the petition for rehearing, however, conveys the information that the verdict of the jury was that Carl was totally and permanently disabled as the result of his injury on April 9, 1946. Counsel for the widow made a statement to the same effect during the argument of the motion at the En Banc hearing. In view of the agreement between counsel on this point, we will assume, for the purpose of considering this motion, that the verdict of the jury was as indicated above.

After the jury found for appellant, respondent renewed its motion to dismiss the appeal. The motion was granted, and a judgment of dismissal was entered on July 6, 1949. On November 26, 1949, after notice of appeal to this court was given, Carl died. His widow thereupon filed this motion.

In presenting the matter to this court, petitioner and respondent have discussed at length the meaning to be attached to Rem.Supp.1947, § 7684, relating to survivorship of claims under the Workmen's Compensation Act. In our view, however, this survivorship statute is not here applicable.

Had a judgment been entered on the jury verdict prior to Carl's death, it is clear that the property right in that judgment would have descended to his legal representative, entirely apart from Rem.Supp.1947, § 7684. Calkins v. Department of Labor and Industries, 10 Wash.2d 565, 117 P.2d 640. No such judgment was here entered. But Rem.Rev.Stat. (Sup.) § 7697-2, provides that the jury's verdict in every such appeal 'shall have the same force and effect as in actions at law.'

In actions at law, where the action would otherwise abate upon death of one of the parties, the rule is established that, if the jury verdict has been entered prior to death, a judgment, the entry of which is delayed by the trial court or the opposing party, will be entered nunc pro tunc as of that date, for the purpose of avoiding abatement. Garrett v. Byerly, 155 Wash. 351, 284 P. 343, 68 A.L.R. 254; Nenezich v. Elich, 183 Wash. 657, 49 P.2d 33.

It happens that in these two cases the party who died was the defendant. However, the rule is also applicable in case of the death of the plaintiff. Mitchell v. Overman, 103 U.S. 62, 26 L.Ed. 369, quoted with approval in the Garrett case, involved a judgment entered nunc pro tunc to avoid...