Ek v. Department of Labor and Industries of State of Washington, 25455.

• Decision Date: 08 March 1935
• Docket Number: 25455.
• Citation: 181 Wash. 91,41 P.2d 1097
• Parties: EK v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.
• Court: Washington Supreme Court

41 P.2d 1097

181 Wash. 91

EK v. DEPARTMENT OF LABOR AND INDUSTRIES OF STATE OF WASHINGTON.

No. 25455.

Supreme Court of Washington

March 8, 1935

Department 1.

Appeal from Superior Court, King County; Roscoe R. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Elizabeth Ek claiming widow's pension, opposed by the Department of Labor and Industries of the State of Washington. From a judgment of the superior court sustaining the rejection of the claim, claimant appeals.

Affirmed.

Albert H. Solomon and Ralph Booth McAbee, both of Seattle, for appellant.

G. W Hamilton and Browder Brown, both of Olympia, for respondent.

TOLMAN Justice.

This is an appeal from a judgment of the superior court sustaining the rejection by the department of a claim for a widow's pension under the industrial insurance act.

The facts found and the conclusions drawn by the trial court are sufficiently shown by the following excerpts from the court's findings of fact and conclusions of law:

'That on the 22nd day of May, 1931, the said Charles Ek, was employed by Tom Drylie at a daily wage to dig a cess-pool and connect a sewer drain from an old cess-pool to the new one; that the said Tom Drylie was the sole owner of the property on which the work was being performed by the said Charles Ek, the said Tom Drylie being then engaged in the business of operating a confectionary store and soda fountain, which fed the drain pipe and old cess-pool aforesaid; that the said Charles Ek worked on the building of the new cess-pool and the opening of the drain to the old cess-pool until approximately 3:30 P. M. on the 22nd day of May, 1931, when the said Charles Ek collapsed and had to be assisted to his home.

'That there is not sufficient evidence that the said Charles Ek suffered an accident or injury on said May 22, 1931.

'That on the 13th day of May, 1932, the said Charles Ek filed with the Department of Labor & Industries his claim for compensation alleging that on the 22nd day of May, 1931, while in the employ of the said Tom Drylie he was injured when cleaning out a drain to a cess-pool on the property of said Drylie, and was overcome by gas fumes; that said claim was rejected on July 12, 1932, by said department, upon the ground that there was no proof of injury in the course of employment and further that there was no proof that the workman's disability was the result of the alleged injury; that no appeal was taken by the said Charles Ek in his lifetime from said decision of said department.

'That on or about the 8th day of January, 1932, the said Charles Ek, being then employed by King County in the work of grading and clearing roads at a daily wage, upon which work he had been engaged intermittently for several months prior to said date, collapsed while on the job; that he was then suffering from a high blood pressure and a condition of partial paralysis of the left side, which coupled with the exertion caused his breakdown at that time; that from said January 8, 1932, down to the time of his death on the 28th day of January, 1933, the said Charles Ek was under continuous medical care of Dr. W. E. Gibson and Dr. A. O. Loe, his condition becoming progressively worse, and that on

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