Depre v. Pacific Coast Forge Co.

• Decision Date: 04 April 1929
• Docket Number: 21533.
• Citation: 276 P. 89,151 Wash. 430
• Court: Washington Supreme Court
• Parties: DEPRE v. PACIFIC COAST FORGE CO.

276 P. 89

151 Wash. 430

DEPRE v. PACIFIC COAST FORGE CO.

No. 21533.

Supreme Court of Washington

April 4, 1929

Department 2.

Appeal from Superior Court, King County; Charles P. Moriarty, Judge.

Action by Andrew Depre against the Pacific Coast Forge Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bogle Bogle & Gates, of Seattle, for appellant.

Guie &amp Guie, of Seattle, for respondent.

FULLERTON J.

This cause was heretofore before this court on an appeal from a judgment of dismissal, entered after a demurrer had been sustained to the complaint. Depre v. Pacific Coast Forge Co., 145 Wash. 263, 259 P. 720. The judgment was reversed on the appeal, and the cause remanded for further proceedings. After the remand, issue was taken on the allegations of the complaint, and a trial had before a jury which resulted in a judgment in favor of the plaintiff in the action. The present appeal is by the defendant from the last-mentioned judgment.

The evidence on the part of the respondent tended to substantiate the allegations of his complaint. It appeared that the appellant, in connection with its general business, operated a galvanizing plant, of which the respondent was in charge from the latter part of March, 1924, to May 28, 1926. A part of the plant consisted of a large tank, into which was poured a mixture of muriatic acid, sulphuric acid, and water. The mixture was heated to about the boiling point, and was used to remove scale from the metal it was desired to galvanize. The mixture gave off noxious gases, which the ventilation provided was insufficient to remove. The consequence was that the respondent breathed the gases, causing his lungs to become inflamed and otherwise injured, making him susceptible to tuberculosis, which disease he subsequently contracted, to his permanent injury. His evidence further showed that, when he first became aware of the fact that the gases were affecting his lungs, he called the attention of the appellant to the need of more ventilation, and received the promise of the appellant that that condition would be remedied, and continued with the work on the faith of the promise. The complaint and promise were subsequently repeated, but nothing was done towards remedying the condition until it was too late to benefit him.

The appellant, in support of its appeal, first urges that the evidence on the part of the respondent brings him within the provisions of the Workmen's Compensation Act, and that he cannot for that reason maintain against it either a common-law action, or an action under the Factory Act. But we think this question is foreclosed against the appellant by our decision on the former appeal. As we have indicated, there was no substantial difference between the allegations of the complaint and the evidence adduced in support of it. The principal question there before us was whether the facts relegated the respondent to relief under the Workmen's Compensation Act, and our decision was that they did not. The decision, under our repeated holdings, became the law of the case, and we would not now further inquire into the question were we convinced that our first holding was erroneous. But it must not be understood that we are so convinced. The line of demarkation between an injury resulting from some fortuitous event and an injury resulting from the contraction of disease is in many instances shadowy, and no definite or certain rule can be laid down which will in all cases differentiate between them. The facts of the present case, it must be confessed, border on the dividing line, but we are of the opinion that they fall rather without than within the rule of the Compensation Act.

It is next contended that there is no evidence tending to show that the respondent contracted tuberculosis or is now suffering from the disease. But as we read the evidence, the most that can be said is that the evidence was conflicting on the question. His trouble was diagnosed as tuberculosis by competent medical practitioners, and there was evidence of his change in physical condition by nonexpert witnesses that tended to support the conclusion. It may be that the evidence to the contrary was of the greater probative value, but, since the evidence on the part of the respondent was substantial, the court cannot say, as matter of law, that there was a failure of proof.

The next contention is that the respondent assumed the risk incident to his employment. But the respondent alleged, and his evidence tended to prove, a violation of the Factory Act (Rem. Comp. Stat. § 7659), and this court has held in a number of cases that the defense of assumption of risk is not available to an employer who fails to comply with the requirements of the...