Everett v. Department of Labor and Industries

• Decision Date: 12 April 1932
• Docket Number: 23608.
• Citation: 167 Wash. 619,9 P.2d 1107
• Parties: EVERETT v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

9 P.2d 1107

167 Wash. 619

EVERETT v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 23608.

Supreme Court of Washington

April 12, 1932

Department 1.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Proceeding under the Workmen's Compensation Act by Lola May Everett claimant, for the death of W. B. Everett, her husband employee, opposed by the Puget Sound Power & Light Company employer. From a judgment affirming an order of the Department of Labor and Industries which rejected the claim claimant appeals.

Reversed, with direction.

John J. Langenbach and Welsh & Welsh, all of South Bend, for appellant.

John H. Dunbar, Harry Ellsworth Foster, and Granville Egan, all of Olympia, for respondent.

BEELER J.

This is an appeal from a judgment denying to the appellant compensation under the Workmen's Compensation Act for the death of her husband.

The sole question to be determined is one of law, as the facts are undisputed, being presented to the court upon a written stipulation of the parties. The facts are: For several years prior to April 30, 1931, W. B. Everett was employed as resident manager and general overseer of the water department of the Puget Sound Power & Light Company, a corporation, engaged in supplying water to persons residing adjacent to, and within the corporate limits of, the city of South Bend, Wash.; that Everett had general supervision of the waterworks and the actual performance of all new construction, repairs, installations, reading meters, and assisted in the collection of outstanding accounts; that his name was carried on the books of the company as a full-time employee; that his employer paid medical aid and industrial insurance based upon his salary which was paid monthly. The stipulation further provides: 'That a short distance removed from the office of the Puget Sound Power and Light Company in South Bend, Washington, and situated in the same block is a card room known as the Pastime Club, and that for a long time prior to the shooting of the deceased therein, he had been in the habit of going to said card room for the purpose of collecting accounts due his employer from the owner of the said card room and also from the customers of his employer who would frequent said card room; that on the day in question, to-wit: the 30th day of April, 1931, about 4:30 o'clock p. m., he left the office of his employer, stating to other employees therein that he would return to said office Before the hour of 5 o'clock to close the office for the evening as was his regular habit and custom of business; thereafter he proceeded to inspect some premises concerning the water meters therein and also stopped in at the Chester Club, a card and pool room, across the street from the Pastime Card Room to see some customers of his employer therein; that thereafter he went out on the street and proceeded to the Pastime Card Room to collect some further accounts due his employer. That while he was in the Pastime Card Room about the hour of 4:45 o'clock p. m. on said day he encountered a man known as Joseph Aydt, who owed the deceased a water bill of sixteen years standing or thereabouts, amounting to the sum of $1.50; that the deceased had observed the said Aydt drawing water from a neighbor's faucet about a week or ten days prior to said shooting, that the said Aydt was approached by the deceased and some discussion occurred concerning this old water bill and the taking of water by the said Aydt from the faucet belonging to another customer; that in the course of said controversy the said Aydt drew a revolver from his pocket and shot the deceased through the head, from which shooting he immediately died.' (Italics ours.)

After the death of Everett a claim for compensation was filed by the appellant with the department of labor and industries which it rejected. Thereupon an appeal was taken from the order of rejection to the superior court for Pacific county. The trial court affirmed the order, and this appeal followed.

The question is: Was Everett engaged in 'extrahazardous work' as that term is defined by the Workmen's Compensation Act at the time he met his death?

The respondent concedes that the operation of a waterworks falls within the classification of extrahazardous work, as that term is defined by the act.

'There is a hazard in all employment, but certain employments have come to be, and to be recognized as being inherently constantly dangerous. This act is intended to apply to all such inherently hazardous works and occupations, and it is the purpose to embrace all of them, which are within the legislative jurisdiction of the state, in the following enumeration, and they are intended to be embraced within the term 'extrahazardous' wherever used in this act, to wit: * * * waterworks. * * *' Section 7674, Rem. Comp. Stat. Supp. 1927.

It is further conceded that the decedent was killed while in the course of his employment. That being so, the following cases cited and relied upon by the appellant, Hama Hama Logging Co. v. Department of Labor and Industries, 157 Wash. 96, 288 P. 655; White v. Shafer Bros. Lumber & Door Co. (Wash.) 5 P. (2d) 520, and Burchfield v. Department of Labor & Industries (Wash.) 4 P. (2d) 858, are not in point, as in each of those cases the question was whether the claimant was injured while in the course of his employment.

The act further provides: 'Inasmuch as industry should bear the greater portion of the burden of the cost of its accidents, each employer shall, prior to the fifteenth day of each month hereafter, pay into the state treasury for the accident fund, a sum equal to a percentage of his total pay-roll for the preceding calendar month, and for the medical aid fund a certain number of cents for each day worked by workmen in extrahazardous employment during the preceding calendar month, in accordance with the following schedule, to wit: (The same being deemed the most accurate method of equitable distribution of burden in proportion to relative hazard).' (Italics ours.) Section 7676, Rem. Comp. Stat. Supp. 1927.

The schedule then classifies various employments or occupations, and expressly excludes employees engaged in some occupations performing certain kinds of work. For illustration, the operation of a telephone or telegraph system is listed under class 13, and telephone and telegraph operators are expressly excluded, the schedule reading: '13-3 Telephone and telegraph (operation and maintenance) (excludes telephone and telegraph operations).'

The operation of coke ovens is listed in class 16. All employees connected with the operation of such a plant are included, except those employed in office work. That schedule reads: 'Class 16: Coke ovens (operation) (excludes office force only).'

The operation of gas works falls within class 19. The schedule there reads: '19-1 Gas works (operation) (excludes meter readers, complaint men, solicitors, and storeroom employees).'

Waterworks fall within class 23, the schedule reading: '23-1 Waterworks (operation).'

It is quite manifest that it was the intent of the Legislature to cover, by the act, a workman engaged in the operation of a waterworks. And as we proceed it will clearly appear, we think, that the decedent prior to and at the time of his death was engaged in the operation of a waterworks.

Much reliance is placed by the respondent on the decisions of this court in Amsbaugh v. Department of Labor &amp Industries, 128 Wash. 693, 224 P. 18, and Edwards v. Department of Labor & Industries, 146 Wash. 266, 262 P. 973; but in our opinion those cases are not controlling here. In the Amsbaugh Case, supra, it was held that a boy employed solely in delivering daily newspapers on a regular route was not engaged in extrahazardous employment, although his employer operated a press room in connection with its business which was classified as extrahazardous. There the boy had no connection with the press room, and the publishing company did not contribute to the accident fund on account of newsboys or workmen engaged in the delivery of papers. Here the employer contributed to the fund based upon the monthly wage of the decedent. Here the decedent had sole charge of the operation of the plant. He was its overseer and directing head. In the Edwards Case, supra, it was held that a truck driver did not come under the provisions of the act for the reason that his employer's business, that of a...