Lowry v. Department of Labor and Industries, 29267.
| Decision Date | 21 September 1944 |
| Docket Number | 29267. |
| Citation | 21 Wn.2d 538,151 P.2d 822 |
| Parties | LOWRY v. DEPARTMENT OF LABOR AND INDUSTRIES. |
| Court | Washington Supreme Court |
Department 2.
Proceeding under the Workmen's Compensation Act by Lila N. Lowry claimant, against the Department of Labor and Industries of the State of Washington, to recover compensation for death of her husband. From a judgment setting aside Department's order, the Department appeals.
Reversed and remanded, with directions.
Appeal from Superior Court, Clark County; Charles W. Hall, judge.
Smith Troy and L. E. O'Neill, both of Olympia, for appellant.
Wilkinson & Langsdorf, of Vancouver, and Harry Ellsworth Foster, of Olympia, for respondent.
Although the argument has taken a wider range, we think this appeal presents merely a question of statutory construction. Rem.Rev.Stat. § 7675 provides, in part, as follows:
'That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; if the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case.' (Italics ours.)
This is a case where the widow of a workman, who was killed by the negligence of one not in the same employ, made 'the other choice,' and brought a suit for the benefit of herself and minor daughter against the third party wrongdoer. Her action was compromised without trial by the third party defendant's making a payment of $5,000. Was this $5,000, in the words of the statute, 'the amount of recovery against such third person actually collected,' and the amount to be deducted from the compensation provided by the act? The department so ordered. On appeal from that order, the trial court ruled otherwise, and its determination is Before us for review.
As respondent has pointed out in her briefs, and urged on oral argument, her action was brought under the wrongful death statute. As the action was brought for the benefit of her minor daughter, as well as herself, after she had concluded to accept $5,000 from the defendant, it was necessary for her to go into the probate court for several purposes: To have the amount of the settlement approved; to have the fees of counsel allowed and their expenses approved; and to have the remainder of the fund distributed as between herself and her minor daughter. As a result of this proceeding, the court ordered the $5,000 recovery from the third party to be disbursed as follows:
It is argued that this order became res judicata, and this may be conceded. But it is further contended that the act of the department, in deducting $5,000 in fixing the compensation of the beneficiaries under the act, constituted a collateral attack upon the probate order. We do not so regard it. The department does not quarrel with the order in any way. It does not question the jurisdiction of the court to make it, nor with the court's approval of the amount of the settlement, nor with the amount allowed for attorneys' fees and expenses, nor with the distribution by the court as between the beneficiaries. The department's position is simply this: The $5,000 so distributed was the recovery against the third person actually collected, and, therefore, the amount which it was required by the statute to employ in determining the compensation provided by the act. As to that matter, it is contended by the department, and we think correctly, that the order did not make any adjudication, nor purport to do so. But if the statute be construed to direct that the sum to be employed is that actually received by the beneficiaries, after deducting attorneys' fees and expenses from the recovery made, the order is res judicata as to the amount of that sum. Hence, as noted at the outset, the appeal turns wholly upon the interpretation to be given the statute.
The respondent having made 'the other choice,' it is provided that the accident fund 'shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case.' It seems to us that this language leaves no room for interpretation. What was the amount of recovery actually collected against the third person? Clearly, it was $5,000. We see no possible way, short of deliberately warping the language of the statute, to say that it is the sum the beneficiaries actually received; that is, the sum fixed by the court in the probate order after deducting attorneys' fees and expenses. For, it is not the sum that the beneficiary ultimately collects that is to be employed, but the amount of recovery against the third person 'actually collected,' and, unless the $5,000, which the probate court distributed, was the sum actually collected as a recovery from the third person, from what source was it derived?
In construing a statute, every word thereof must, if possible be given meaning and effect. It is clear that the words 'actually collected' qualify the words immediately preceding them; that is, 'the amount of recovery against such third person.' It is also manifest, had the words 'actually collected' not been used and the legislature had stopped with the words 'the amount of recovery against such third person,' that the department, in making its computation, would have arrived at the same result that it actually reached in this case; for, it has deducted the amount of the recovery. It might, therefore, appear that the words 'actually collected' have not been given meaning and effect. However, this appearance is created by the fact that, in the instant case, the amount of the recovery happens to be the same as the amount actually collected, that is, $5,000. Let us suppose that the respondent had made a recovery in her action in the amount of $25,000 (or any sum greater than her statutory compensation), and further suppose that she had found it impossible...
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