Kelly v. Department of Labor and Industries

• Decision Date: 13 April 1933
• Docket Number: 24293.
• Parties: KELLY v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

20 P.2d 1105

172 Wash. 525

KELLY v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 24293.

Supreme Court of Washington

April 13, 1933

Department 1.

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

Proceeding under the Workmen's Compensation Act by T. B. Kelly claimant for injuries, Before the Department of Labor and Industries. From a judgment of the superior court reversing an order of the joint board, which sustained an order of the Department of Labor and Industries refusing to reopen claimant's case, the Department of Labor and Industries appeals.

Affirmed.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for appellant.

George H. Mullins, of Yakima, for respondent.

MITCHELL Justice.

T. B Kelly was accidentally injured by the caving of earth while working in a sewer ditch in Yakima February 27, 1926. A report of the accident and a claim thereon were filed with the Department of Labor and Industries and allowed. Thereafter his case was closed, with a finding of six degrees permanent partial disability. The case was reopened. Later it was closed as of and including December 20, 1928, with a finding of thirty-two degrees permanent partial disability. Thereafter he applied to the department for a readjustment of his compensation on account of alleged aggravation of his disability. The application was denied on September 23, 1931. An appeal was taken to the joint board of the department, wherein, upon a hearing had, the joint board, on April 18, 1932, sustained the former order of the department refusing to reopen the case. An appeal was taken by the claimant to the superior court, where, in a jury trial, there was a verdict for the claimant. From a judgment on the verdict, the Department of Labor and Industries has appealed.

The first assignment is that the court erred in granting the respondent a jury trial, over the objections of the appellant.

The statute provides that, except in certain kinds of cases where jury trials may be had as a matter of right, different from the present kind of case, 'the calling of a jury shall rest in the discretion of the court.' Rem. Comp. Stat. Supp. 1927, § 7697; Laws 1931, c. 90, § 1, p. 263. The issue in the case was clearly defined by a written interrogatory submitted to the jury by the court; the form of it being acceptable to both parties, as follows: 'Has the plaintiff's disability as a result of the injuries received by reason of the accident on February 27, 1926, been aggravated since this claim was closed by the department of labor and industries on the 21st day of December, 1928?'

The issue thus presented was one of fact, to which trial by jury was, of course, decidedly appropriate.

Appellant cites Murray v. Department of Labor and Industries, 151 Wash. 95, 275 P. 66, in arguing this assignment of error. However, there was no jury trial in that case, nor was there any request for one. It was a case wherein the claimant, being dissatisfied with the degree of disability into which he was put by the department, appealed to the superior court. The particular question discussed in the decision was: 'A copy of the records and files of the department, together with a transcript of the testimony adduced upon the hearing Before the joint board, was filed with the superior court as required by law, and upon that record the department moved for a dismissal of the appeal. This motion was by the lower court in a memorandum opinion, not only denied, but the court also, on the record alone, directed that judgment be entered reversing the department on the merits, whereupon appellant moved for an order of court setting the case for trial on a day certain, and made a written offer to prove certain facts deemed material for the defense of the action. This motion was denied. Findings of fact, conclusions of law, and a decree were duly signed, and this appeal follows.'

It was held that the trial court was in error, and that the motion to dismiss made by the department should have been treated as a motion for a nonsuit, after the denial of which the department should have been permitted to put in its proof according to the written offer made at that time. Elucidating the point of practice involved, the court said: 'We...