Johnson v. Department of Labor and Industries

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, Justice.
• Citation: Johnson v. Department of Labor and Industries, 182 Wash. 351, 47 P2d 6 (Wash. 1935)
• Decision Date: 03 July 1935
• Docket Number: 25541.
• Parties: JOHNSON v. DEPARTMENT OF LABOR AND INDUSTRIES.

47 P.2d 6

182 Wash. 351

JOHNSON v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 25541.

Supreme Court of Washington

July 3, 1935

Department 2.

Appeal from Superior Court, Clark County; Geo. B. Simpson, Jude.

Proceeding under the Workmen's Compensation Act by Mrs. Mary Johnson for the death of her husband, Peter Johnson. From a judgment of the trial court affirming a decision of the joint board of the Department of Labor and Industries of the State of Washington, which sustained an order of the supervisor denying compensation, claimant appeals.

Affirmed.

P. M Kane and John Wilkinson, both of Vancouver, for appellant.

G. W Hamilton and J. A. Kavaney, both of Olympia, for respondent.

HOLCOMB Justice.

This appeal is from a judgment of the trial court dismissing the claim of appellant and denying any recovery for the accidental death of her husband, Peter Johnson, deceased. The cause was Before the trial court on appeal from a decision of the joint board of the department sustaining an order of the supervisor which was based upon the ground that at the time of the injury the occupation of the deceased was that of woodcutting incidental to farming, and not within the scope of the Workmen's Compensation Act (Rem. Rev. Stat. § 7673 et seq.).

The facts were not in dispute and may be briefly summarized as follows: The deceased Johnson, with his wife, had for 30 years resided on a farm in Clark county. On a neighboring farm was another elderly couple who had there resided for 40 years or so. Their farm consisted of 40 acres approximately 15 acres of which were cleared and in cultivation, the balance being slashed with a few remaining trees of old growth in isolated places. For about 5 years one Larson, grandson of the owners of that farm, had rented the place and occupied and cultivated it for general farming purposes. The land under cultivation not being sufficient to require all of his time, he engaged in work upon the roads and in his spare time slashed and cleared additional land on the farm. Of the original growth of timber on the premises there remained five or six trees of white fir suitable for pulpwood, but not for fuel, around which a dense growth of brush grew, which made it necessary to cut the trees as well as to slash the brush and make it accessible for pasture purposes. In the summer of 1933, one Vike offered to buy of Larson the white fir wood for $2 per cord if it were cut into pulpwood lengths and split. To this Larson agreed and proceeded to fell the trees, cutting the same into pulpwood lengths. Before completing the work he became ill, and to fulfill his agreement with Vike he procured the two sons of the deceased to split the remainder of the wood and agreed to pay them 25 cents per cord. The two sons entered upon the work and after some time the deceased, having some harrowing he wished done on his own farm and being crippled so as to be unable to follow the team, required the younger son to remain at home to do the harrowing while he took that son's place in splitting the wood. The second day he sustained the injury which resulted in his death. He had made no arrangements with Larson for wages, nor was there an agreement with him to perform the work of splitting the wood. Larson was making his living from farming. The cutting of the pulpwood was but incidental in the removal of the trees from his pasture.

The widow filed her claim for pension under the Workmen's Compensation Act, which was rejected for the reasons stated.

On appeal, appellant asserts that there were two propositions presented to the lower court and which are presented here for determination, namely: (1) That claimant's deceased husband was an employee within the meaning and the defined terms of the act at the time he received the injury which caused his death; and (2) that the occupation of the deceased was within the scope of the Workmen's Compensation Act at the time he received the injury.

The lower court did not decide the first proposition, but, for the purposes of the case, assumed that the deceased was such an employee within the meaning of our statutes relating to industrial insurance, but held against claimant upon the second contention.

Nine errors are assigned by appellant why the judgment of the trial court should be reversed, but they all resolve into...