Hodgen v. Department of Labor and Industries of Washington

• Decision Date: 28 April 1938
• Docket Number: 26499.
• Citation: 194 Wash. 541,78 P.2d 949
• Parties: HODGEN v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.
• Court: Washington Supreme Court

78 P.2d 949

194 Wash. 541

HODGEN v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON.

No. 26499.

Supreme Court of Washington, En Banc.

April 28, 1938

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Proceeding under the Workmen's Compensation Act by Inez Hodgen opposed by the Department of Labor and Industries of Washington. From a judgment reversing an order of the department upon a claim for compensation, the department appeals, and claimant moves to dismiss the appeal.

Motion to dismiss appeal denied and judgment reversed and remanded with direction.

G. W Hamilton, Atty. Gen., and J. A. Kavaney, of Olympia, for appellant.

Hubbert & Mullins, of Yakima, for respondent.

STEINERT Chief Justice.

This is an appeal by the Department of Labor and Industries from a judgment of the superior court reversing an order of the department upon a claim for compensation under the industrial insurance act.

Claimant Inez Hodgen, was injured in the course of her employment in an applepacking plant in Yakima. She presented her claim to the supervisor and thereafter submitted herself to examination by a commission of three medical specialists selected by the department. Upon receipt of the medical report the supervisor made an order to the effect that claimant's existing disability was not due to the accident, but was referable solely to a pre-existing gall-bladder disease. The claim was thereupon closed with the payment of ninety-five days' time loss, but with no allowance for permanent partial disability.

Claimant appealed to the joint board, stating in her notice of appeal that she was incapacitated from working and was permanently injured. A rehearing was granted at which oral testimony was taken.

At the conclusion of the rehearing the joint board made its findings and entered an order sustaining the supervisor's finding of pre-existing disease, but reversing his finding with respect to permanent partial disability. The joint board found that claimant had suffered a permanent partial disability of eight degrees, but also found that, in so far as the injury and its effect were concerned, she had been able to carry on a gainful occupation from the time when her claim was originally closed by the supervisor. The joint board thereupon directed the supervisor to reopen the claim for the allowance of eight degrees permanent partial disability, but for no further time loss. The claim was subsequently closed on that basis.

Claimant then appealed to the superior court, where a trial was had Before a jury. At the conclusion of the evidence, the court gave its instructions upon the law, but dispensed with the usual forms of verdict. Instead, a special interrogatory was propounded, requiring the jury to find whether or not claimant had sustained a permanent total disability attributable to the injury occasioned by the accident, as distinguished from any disability resulting from a per-existing disease. The jury answered the interrogatory in the affirmative. Motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial having been denied, the court entered judgment based expressly and directly upon the special finding and directed that the claim be referred to the department with instruction to proceed in accordance with the 'findings of said verdict and the judgment of this court.' The department thereupon took this appeal.

Respondent, heretofore referred to as claimant, has moved to dismiss the appeal because no proper or valid statement of facts or bill of exceptions has been timely filed.

Appellant filed in the superior court a proposed statement of facts and, a little later, a supplemental statement of facts, both of which, on motion of respondent, were ordered stricken by the court. Appellant then offered its proposed statement of facts as a bill of exceptions, to which respondent proposed certain amendments which the court allowed. The bill of exceptions does not recite all the material evidence, but only purports to set forth so much thereof as called for a ruling by the court as to its admissibility. The court refused to certify that it had considered the departmental record, but merely certified that it had considered the exhibits taken from the departmental file and admitted in evidence.

Although the departmental record was duly filed in the superior court and has been brought to this court as part of the transcript on appeal, there is nothing by way of a statement of facts nor by way of finding, judgment, or certificate of the trial court showing that the cause was tried solely upon the departmental record. For aught that we can tell there may have been evidence other than that which has been certified to us.

But this does not call for a dismissal of the appeal. It merely prevents us from determining upon what evidence the trier of the facts based its findings, and from holding that the decision of the trial court upon questions of fact was wrong. In an action tried by the court alone, there is always the question whether the findings support the judgment. Simmons v. Department of Labor and Industries, 175 Wash. 290, 27 P.2d 567; Strmich v. Department of Labor and Industries, 186 Wash. 649, 59 P.2d 372; Hunter v. Department of Labor and Industries, 190 Wash. 380, 68 P.2d 224.

In an action tried Before a jury there is likewise the question whether the verdict supports the judgment. And in all cases, however tried, there is the question whether the judgment is proper and valid under the law. For these reasons the motion to dismiss the appeal is denied.

Upon the merits of the case appellant presents ten assignments of error.

Three of the assignments are based upon alleged errors of the court in granting a trial by jury without first examining the departmental record or exercising a proper discretion, and in refusing thereafter to quash the demand for a jury.

Rem.Rev.Stat. § 7697, provides, among other things, as follows: 'The calling of a jury shall rest in the discretion of the court, except that in cases arising under section 7683 [194 Wash. 545] and 7690 [neither of which is material here] either party shall be entitled to a jury trial upon demand.'

We have frequently held, in actions of this kind, that, when an issue of fact is presented, a trial by jury is appropriate and may be allowed. Taylor v. Industrial Insurance Commission, 120 Wash. 4, 206 P. 973; Kelly v. Department of Labor and Industries, 172 Wash. 525, 20 P.2d 1105; Gatterdam v. Department of Labor and Industries, 185 Wash. 628, 56 P.2d 693. But the propriety of such procedure does not render it mandatory upon the court to follow it, nor is the calling of a jury by the court controlled by the demand of either party, except in those instances designated above as being immaterial here. It is a matter that rests entirely in the sound discretion of the court.

However, the demand for a jury by either party calls for something more...