Edwards v. Department of Labor and Industries of Washington

• Decision Date: 03 January 1928
• Docket Number: 20842.
• Parties: EDWARDS v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

262 P. 973

146 Wash. 266

EDWARDS v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 20842.

Supreme Court of Washington

January 3, 1928

Department 2.

Appeal from Superior Court, King County; Jones, Judge.

Proceeding under the Workmen's Compensation Act by Fred E. Edwards for injuries sustained while in the employment of L. Marks &amp Co. An order of the Department of Labor and Industries rejecting the claim was reversed by the Superior Court, and the Department appeals. Reversed.

John H Dunbar and Mark H. Wight, both of Olympia, for appellant.

Kenneth Durham, of Seattle, for respondent.

HOLCOMB J.

Respondent while employed as a driver, delivering merchandise on a truck belonging to L. Marks & Co., a corporation, and while engaged in its business, was injured on April 13, 1926. His claim for industrial insurance was rejected on the ground that he was not employed in an 'extrahazardous occupation,' as defined in the Workmen's Compensation Act (Rem. Comp. Stat. §§ 7673-7796, as amended by Laws 1923 c. 136, and Laws 1925 [Ex. Sess.] c. 84), and he appealed. The lower court reversed the department, and from that judgment the department has appealed.

These are the stipulated facts: L. Marks & Co. maintained a truck of considerable weight, such as is commonly used for heavy hauling, for delivery to its customers of merchandise sold them, which delivery constituted a part of the business or operations of that company in the wholesaling of tobacco, cigars, cigarettes, and candies. The merchandise so delivered was usually contained in cartons or cases which, in some instances, would weigh as much as 200 pounds. In conformity with these stipulated facts, the court found the facts, and concluded, as a matter of law, that respondent was engaged in an extrahazardous occupation within the meaning of the law.

The sole question presented is this: Is a truck driver, employed by a wholesale merchant to operate a large truck, such as is commonly used for heavy hauling, maintained by such employer as a part of its business for the delivery to customers of heavy cartons and cases of commodities, engaged in an extrahazardous occupation, within the meaning of the Workmen's Compensation Act? 'Workman means every person * * * who is engaged in the employment of an employer coming under this act. * * *' Section 7675, Rem. Comp. Stat.

'Employer means any person * * * engaged * * * in any extrahazardous work or who contracts with another to engage in extrahazardous work.' Id.

Section 7674, Rem. Comp. Stat., as amended in section 1, ch. 182, Laws of 1921, specified, among the occupations declared to be extrahazardous, 'transfer, drayage and hauling.'

Section 7676, Rem. Comp. Stat., was amended by section 1, ch. 136, Laws of 1923, by setting forth at length the occupations to be included in the various accident fund classes, as follows:

'Class 11. 11-1 Team and truck driving (includes all warehouses operated by transfer companies). * * *'

Appellant, therefore, contends that an 'employer' being defined as one engaged in any extrahazardous work, which extrahazardous work is, however, specifically enumerated as to the kinds and nature of work which are extrahazardous, under the rule of ejusdem generis the meaning of the general term 'extrahazardous' is limited to the kinds of work particularly enumerated and designated within the act itself, and quotes from Parker v. Pantages Theater Co. (Wash.) 254 P. 1083, as follows:

'Whether an occupation is in law extrahazardous or not depends upon whether the act has so declared it, or it has been so found by the industrial insurance department.'

It is therefore contended that the word 'work,' as used in the last statutory definition, is limited in its application from its very context, and the wording of the entire act, which relates only to the business or the trade of the employer. It is argued that this is apparent when we observe that 'factory,' under section 7675, supra, means an 'undertaking in which the business of working at commodities is carried on with power-driven machinery,' and that 'workshop' means the 'place wherein power-driven machinery is employed and manual labor is exercised by way of trade.'

Appellant then deduces the conclusion that the clear legislative declaration that 'work' as applied to employers means business or trade, and that this construction is supported by the decision in Guerrieri v. Industrial Insurance Commission, 84 Wash. 266, 146 P. 608, where we held that the operation of a passenger or freight elevator is not an extrahazardous employment entitling the operator to compensation for injuries within the definition of the act; that section 7674, supra, includes factories, mills, workshops elevators, etc., and indicates an intent to cover classes of business, rather than particular pieces of machinery. Barney v. Anderson, 116 Wash. 352, 199 P. 452, and Remsnider v. Union Savings & Trust Co., 89 Wash. 87, 154 P. 135, Ann. Cas. 1917D, 40, are cited as sustaining that construction.

Since the opinion by the Attorney General to the Department of Labor and Industries dated July 17, 1923, the department has never classified delivery wagons and auto trucks used by stores as 'transfer, drayage and hauling,' nor their places of business as 'warehouse and transfer' establishments. The department has, therefore, never collected premiums from such concerns. The Legislature has twice met since that opinion of the Attorney General, and the adoption of that policy by the department, and no different classification has been enacted by the Legislature.

The trial judge concurred in the contention of respondent, and decided the case upon the belief that every concern which commonly uses a truck or vehicle for moving personalty is engaged in the business of transfer, drayage, and hauling. Respondent contends, therefore, that he was engaged in 'truck driving' under section 7676, supra; that under section 7674 he was engaged in 'transfer,' defined in the dictionaries as a removal or conveyance of a thing from one place to another; and that he was engaged in 'drayage' under the last section, for he was using a vehicle for carrying heavy loads. It is also contended that he was engaged in 'hauling' under section 7674, inasmuch as it was stipulated that the truck he was driving was such as is commonly used for heavy hauling.

Respondent then argues that the extrahazardous nature of the work in which he was engaged when injured is the criterion for interpretation, and not the main business of...