Farrow v. Department of Labor and Industries
| Decision Date | 01 December 1934 |
| Docket Number | 25116. |
| Court | Washington Supreme Court |
| Parties | FARROW v. DEPARTMENT OF LABOR AND INDUSTRIES. |
Department 2.
Appeal from Superior Court, King County; J. Grattan O'Bryan Judge.
Proceeding under the Workman's Compensation Act by David C. Farrow opposed by Carl Drake and another. A decision of the joint board rejecting the claim was appealed to the Superior Court where judgment was rendered in favor of the claimant, and the Department of Labor and Industries appeals.
Affirmed.
G. W Hamilton, Browder Brown, and O. M. Cook, all of Olympia, for appellant.
Albert H. Solomon, of Seattle, for respondent.
June 15, 1932, plaintiff had his leg broken while cutting cord wood. August 25, 1932, claiming to be, at the time of injury in the employ of a partnership composed of Carl Drake and James J. Gillespie, he filed a claim with the industrial insurance department. After investigation, the department rejected the claim, on the ground that plaintiff was himself a partner of Drake and Gillespie and not an employee. A notice of rejection of the claim, bearing date of September 9, 1932, was at some time mailed to plaintiff, which he admitted receiving some time in November, 1932. On December 8, 1932, he filed with the joint board an appeal from the ruling of the department. The joint board refused to assume jurisdiction, on the ground that the appeal was not timely under section 7697, Rem. Rev. Stat. The board so notified plaintiff on December 12, 1932.
January 5, 1933, plaintiff filed an amended petition on appeal to the joint board, alleging that he had not received notice of rejection of his claim by the department until November, 1932. The joint board, after hearing evidence on the issue, found that the department's rejection of the claim, on the ground that plaintiff was not an employee of Drake and Gillespie, was not warranted by the record and evidence. The joint board, however, adhering to its view that the appeal was not timely under section 7697, Rem. Rev. Stat., rejected the claim on that ground.
Plaintiff appealed to the superior court, which remanded the case to the department with directions to allow plaintiff compensation as provided by statute. The department appeals from the judgment so entered.
Since the joint board found that the department erroneously rejected the claim, on the ground that respondent was not an employee under the terms of the act, the sole question presented here for determination is: Did respondent receive the notice of rejection of his claim more than sixty days prior to December 8, 1932, the date upon which he filed his appeal with the joint board?
Respondent testified that he did not receive the notice of rejection until some time in November, 1932. To establish the contrary, the department relies solely upon the presumption of receipt by the addressee, in due course of mails, which arises upon proof of mailing.
There can be no question that, if the department had produced a witness who had testified to the deposit in the United States mail on September 9th of the notice, sealed, stamped, and properly addressed, the presumption would be effective and raise an issue of fact to be determined from all the evidence on this issue. But that is not the proof presented in this case. The department sought to prove the fact of mailing by office custom. Obviously, in an office handling as much correspondence as does the Department of Labor and Industries, no one can remember the fact of mailing any particular notice or letter. So the law has become well established in such instances that pfoof of mailing may be made by showing (a) an office custom with respect to mailing; (b) compliance with the custom in the specific instance. Federal Asbestos Co. v. Zimmermann, 171 Wis. 594, 177 N.W. 881, 25 A. L. R. 5 ().
The proof here was that the clerk whose duty it was to prepare the notice, address and stamp the...
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