Leary v. Department of Labor and Industries

• Decision Date: 17 July 1943
• Docket Number: 29003.
• Citation: 140 P.2d 292,18 Wn.2d 532
• Parties: LEARY v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

140 P.2d 292

18 Wn.2d 532

LEARY v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 29003.

Supreme Court of Washington

July 17, 1943

Department 1.

Proceeding under the Workmen's Compensation Act by Winifred M. Leary for the death of Frank Leary, her husband, claimant, opposed by Department of Labor and Industries of the State of Washington. From a judgment of the superior court affirming an order of the department, plaintiff appeals.

Reversed with instructions.

Appeal from Superior Court, King County; Clay Allen, Judge.

Kenneth Durham, of Seattle, for appellant.

Smith Troy and Harry L. Parr, both of Olympia, for respondent.

JEFFERS Justice.

This is an appeal by Winifred M. Leary, widow of Frank C. Leary, from a judgment of the superior court for King county, affirming an order of the joint board of the department of labor and industries, on rehearing, sustaining the supervisor's rejection of Mrs Leary's claim for a widow's pension.

Frank Leary died on November 23, 1941, while in the employ of Associated Shipbuilders. Following his death his widow, Winifred Leary, who will hereinafter be referred to as appellant, filed with the supervisor her claim for a pension. On January 17, 1942, the supervisor rejected her claim, for the following reasons, as shown by his order:

'Whereas, Frank Leary died on November 23, 1941, while in the employ of the Associated Shipbuilders, the cause of death being coronary occlusion and a claim has been filed by Winifred Mary Leary, widow of Frank Leary, alleging that the fatal heart attack was induced by excitement, and

'Whereas, the heart attack and death occurred outside of the premises of the employer's plant and while the deceased was engaged in assisting a fellow employee, who had gone off shift, to start his car and while so engaged was not in the actual performance of his duties for the employer, and

'Whereas, there is no evidence whatsoever of any injury, strain or other untoward event in the course of employment which could have been responsible for his collapse,

'Therefore, it is ordered that the widow's claim be and the same is hereby rejected for the reason that death was not the result of an injury in the course of employment but was due solely to a progressive coronary disease and his employment was in no was responsible for the fatal culmination of the disease.'

We have set out the above order because of the contention made by the department (to which we shall later refer) relative to the issues raised by this appeal.

Appellant timely filed her application for a rehearing Before the joint board. This application was granted, and on April 14, 1942, the matter came on for hearing. The following named witnesses testified on behalf of appellant: T. F. Dunn, C. A. Sullivan, Doctor Henry Takacs, and appellant. The department offered no testimony.

The following facts, as shown by the evidence, are undisputed: At the time of his death, Frank Leary was employed as a gateman for Associated Shipbuilders, and had been in such employment since March 1, 1941, working on what is known as the swing shift. Mr. Leary went on duty at four p. m., relieving a Mr. Dunn, who was also a gateman. Mr. Dunn testified as follows relative to the duties of the gateman:

'Q. What was his [Mr. Leary's] job at that time? A. Well he was, he was gate man on the swing shift. That is he went to work at four o'clock and relieved me.

'Q. Now the gatemen's duties are what? A. Well their duties are to open the gate to admit traffic and also to check all people coming in for passes and their right to be in the yard.

'Q. In case a person parks near to the yard is it your duty to go outside and check up on them? A. Yes.

'Q. You have to look out for people then who are both inside and outside the yard? A. Yes.

'Q. Now on this--or, is it or is it not your duty to see that the gate is kept free and cleared at all times from any obstruction nearby which might interfere with fire apparatus? A. Yes, absolutely.'

There was no cross-examination of Mr. Dunn.

Mr. Sullivan, who was in the employ of Associated Shipbuilders as a watchman, or guard, testified as follows relative to the duties of the gateman:

'Q. What are the duties of the gate keeper at that gate? A. To check all incoming and outgoing traffic; both vehicle pedestrian. * * *

'Q. Are they commissioned as police officers? A. Deputy sheriffs.

'Q. Deputy sheriffs. Well do they have anything to do with the parking there and the conditions immediately around the gate on the outside? A. Yes sir. The driveway or approach to the gate is supposed to be kept clear at all times. The reason for that being in case of fire so the department will have easy ingress to the plant. That is the main reason.

'Q. And it is their duty to observe anything that is outside that gate that might affect the safety of the plant I suppose? A. Oh, absolutely. Keep that entrance clear.'

The testimony quoted is all the evidence relative to the duties of Mr. Leary as gatekeeper.

We shall next set out the testimony relative to the gates. Mr. Dunn testified as follows:

'Q. Then the main gate to the shipyards consists of how many parts? A. Well, there are two gates. * * *

'Q. About what size are each of those gates? A. Oh, I would say they are about six or six and a half feet high and, well, each one is probably about twelve, at least twelve feet wide.

'Q. And they swing together in the middle? A. Yes.

'Q. How are those gates fastened? A. Well on the end they swing from they are fastened by hinges and they have, in the center there is a rod that raises up; you have to raise that up to open the gates. In other words there is a little hole in the concrete there (Indicating).

'Q. Yes? A. (Continuing) With a square metal frame around it.

'Q. The hole is a, sort of on a, a hump or a raised place? A. Yes, and the rod, in order to raise the gates you see when you shut the gates--oh, I don't know, maybe I could best do it by drawing a picture of its rather than explaining it.

'Mr. Jackson: Well it's just like the, you have flanges facing, the rod dropping into the socket, in other words like closing the doors on a garage, isn't it? A. (Continuing) No, the rod runs the full height of the gate and there is a handle on it that you have to raise, turn it----

'Mr. Jackson: That is in opening it. A. (Continuing) Yes, and then there is, oh, a small strap that fits in another part of the gate and drops down and then there is a hole in that you can put your padlock on. And, well in order to raise the gate you have to raise your handle and turn that so it will not slide down in again.

'Q. How much does this handle weigh you have to lift to open the gate; how much does that weight? A. Oh, I don't have any idea of the weight of it. It takes a pretty good pull to open it though. You see, it's exposed to the weather and gets bumped and as a result of that it's sometimes a little hard to open.'

Mr. Sullivan described the gate as being in two sections, having a total width of about eighteen feet, and stated that the bar or rod referred to weighs about twenty-five or thirty pounds.

We desire at this time to set out the statement of questions involved, as made by appellant in her brief:

'1. Where it was the duty of appellant's husband as a guard at the entrance gate of a shipyard to keep the gate clear of obstructions at all times and no means for carrying out this duty were specified or provided by the employer, was he in the course of employment while attempting to use his automobile as a source of power to push and start the disabled car of a fellow workman, which was stalled in front of the gate in such position as to obstruct entrance to the shipyard?'

'2. Was the death of appellant's husband from sudden heart failure while so doing due solely to a progressive heart disease uninfluenced by exertion?'

We shall now set out quite fully the testimony relative to Mr. Leary's acts referred to in question No. 1, as it is apparent that if deceased was not in the course of his employment at the time of his death, it becomes immaterial whether or not such acts caused his death.

Mr. Dunn testified that Mr. Leary reported for work on the day of his death at about a quarter to four, and that he (Dunn) unlocked the gate and let Leary in; that shortly after four, Leary opened the gate for Dunn, who went out to his car, which was parked outside the gate on the south side of Sixteenth avenue southwest, and about twelve or fifteen feet south of the gate; that Leary's car was parked a little north of the gate, on the gravel. Mr. Dunn further testified that when he got to his car he found it would not start, the battery being down; that there was a slight incline where the car was parked, so he shoved his car, got it rolling back, and then jumped in and threw it in reverse to try to start it, but the car would not start; that the car had rolled back so it was in front of the south gate, which was opened and closed all the time. When the witness found his car in that position, he called to Leary and asked him if he would come give the car a push so he could get it started.

The witness, upon being asked wiether or not his car was then in such a position that it would bave blocked access to the yard by fire apparatus, answered:

'A. Why, yes. Nobody could have got in--well, they could have gotten in but it would have been an awful tough job to do it. They would have had to swing clear around where my car was in my position and go up to the other gate; that would have necessitated opening the north gate.

'Q. And anybody would have had to swing clear around you? A. Yes, my car was in the middle of the street. * * *

'Q. Then what did Mr. Leary do? A. Why he came out. He asked Mr....