Mattson v. Eureka Cedar Lumber & Shingle Co.

• Decision Date: 27 April 1914
• Docket Number: 11,555.
• Court: Washington Supreme Court
• Parties: MATTSON v. EUREKA CEDAR LUMBER & SHINGLE CO.

140 P. 377

79 Wash. 266

MATTSON v. EUREKA CEDAR LUMBER & SHINGLE CO.

No. 11,555.

Supreme Court of Washington

April 27, 1914

Department 1. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action by Mat Mattson against the Eureka Cedar Lumber & Shingle Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Morgan & Brewer, of Hoquiam, for appellant.

A. M Abel, of Aberdeen, and W. H. Abel, of Montesano, for respondent.

ELLIS J.

The plaintiff brought this action to recover for personal injuries received by him while at work as a common laborer in the defendant's sawmill. The plaintiff is a Finn and cannot speak, read, write, or understand the English language. He had been working for the defendant for about two weeks, during which time he was engaged in loading cars. On the morning of July 31, 1911, the defendant's foreman took him to the shipping shed, where lumber is piled to await shipping, and directed him to work there piling lumber indicating the place where he was to work. There were already many piles of lumber in this shipping shed; the piles being constructed in the following manner: The lumber, which consisted of flooring of various lengths, was assorted, tied in bundles of six boards each, and leaned against the wall of the shed; the upper end resting against the wall. Against these other bundles of the same length were leaned, and so on, forming piles according to the lengths of the lumber in the bundles. The plaintiff, at the time of the accident, was engaged in taking bundles from trucks as they were brought into the shed, assorting them as to length, and leaning them against the appropriate piles. He was engaged in taking bundles of lumber from a truck when a part of one of the piles fell on him, inflicting the injuries complained of. The evidence showed that the shipping shed was built upon a wharf constructed upon piling driven into the mud. Upon the same wharf, and at a distance variously estimated at from 40 to 150 feet from the shed, was the planing mill. The evidence is conclusive that when the planing mill was in operation the vibration of the machinery shook the wharf and caused the shipping shed to vibrate with considerable violence. There was evidence that, in the absence of braces to secure the piles of lumber standing on end in the shed, the vibration would cause them to slide and fall. There was evidence that such braces were supplied between the piles, extending from the wall a distance of about six feet. The evidence further shows that the pile which fell upon the plaintiff extended some ten feet from the wall. The negligence charged was that the defendant failed to furnish to the plaintiff a safe place to work, in that it negligently caused to be piled and maintained an unsafe, unsecured, and unstable pile of lumber not braced. No one save the plaintiff was present at the time of the injury. The plaintiff testified that he had not touched the particular pile of lumber which fell upon him. He was injured late in the afternoon of the same day in which he was first set to work in the shed. After his injury, he was taken to the Hoquiam general hospital with which the defendant had a contract for the care of its injured employés. Dr. McDonald, a member of the hospital staff, who treated all persons injured at the defendant's mill, treated the plaintiff for his injuries. After the plaintiff had been at the hospital for a few days, the defendant's manager called upon him with a view to securing a settlement for his injuries, but apparently the plaintiff could not understand what was said to him, and no agreement was reached. On the 10th of August, about ten days after the plaintiff was taken to the hospital, the manager, another man, and an interpreter came to the hospital, and, after some conversation had been carried on through the interpreter, the plaintiff accepted $250 and signed a release in full for his injuries. The plaintiff admitted the signing of the release, and that he received the money, but alleged that he was induced to do so through fraudulent representations of the defendant's manager and did not, in fact, know that it was a release. The cause was set for trial on the 10th day of June, 1913. On June 4th, the defendant moved for a continuance on the ground that the defendant's foreman at the time of the accident was no longer in the defendant's employ, and that it was necessary to secure his testimony before proceeding to trial. The motion for a continuance was denied. At the close of the plaintiff's evidence, motions for a nonsuit and for a directed verdict were interposed. There were overruled. At the close of all the testimony, the motion for a directed verdict was renewed and was again overruled. The jury returned a verdict for the defendant in the sum of $3,906.50. The defendant moved for a new trial. This was denied. Judgment was entered upon the verdict. The defendant appealed.

Preliminary to the discussion of the case in general, the appellant urges that the court committed error in refusing the continuance. The motion for a continuance was supported by certain affidavits, which, it is claimed, were attached thereto. The motion, however, does not identify these affidavits either by reference to the names of the affiants or by reference to their contents. The order denying a continuance makes no reference whatever to the affidavits. The affidavits are not included in nor made a part of the statement of facts, nor is there any certificate of the trial court that his order was based upon these affidavits, or that no other affidavits were considered by him in passing upon the motion. These affidavits are only brought up by inclusion in the transcript. The respondent has interposed a motion to strike them. These affidavits do not fall within the rule announced in State v. Vance, 29 Wash. 435, 70 P. 34, upon which appellant mainly relies, much less within that rule as circumscribed by subsequent decisions.

We have repeatedly refused to extend that rule or to apply it to any situation not a positive parallel, and have definitely declared that, unless affidavits are clearly identified by the motion, and unless we can fairly infer from the order of the court that no other affidavits were considered by the trial court, we will decline to consider such affidavits unless embodied in and made a part of the statement of facts, duly certified. Haines & Spencer v. Kelley, 57 Wash. 219, 106 P. 776; Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 P. 795; Spoar v. Spokane Turn-Verein, 64 Wash. 208, 116 P. 627; Sakai v. Keeley, 66 Wash. 172, 119 P. 190; Hayworth v. McDonald, 67 Wash. 496, 121 P. 984. As pointed out in International Development Co. v. Sanger, 75 Wash. 546, 135 P. 28, we have repeatedly held that, where there is nothing in the record to show that evidence other than an affidavit attached to a motion was not considered by the court in ruling upon the motion, the action of the trial court will not be reviewed. In that case we said: 'For the guidance of the bar, we now announce the rule to be that this court will not in any case say that the judgment of the trial court is wrong upon questions of fact unless it has before it all the evidence upon which that court passed judgment, and this fact must affirmatively appear upon the record.' See, also, the more recent cases of Powers v. Washington Portland Cement Co., 139 P. 615, and Agens v. Powell, 139 P. 873, just decided. These decisions indicate a steady rescission from the broad rule announced in the Vance Case and state what we are now persuaded is the only safe and reasonable rule. These affidavits cannot be considered. The motion for a continuance being addressed to the sound discretion of the trial court, and there being nothing properly in the record upon which to base an intelligent review of its action, we cannot say that the court committed error in denying the continuance.

The appellant contends that its motion for a nonsuit at the close of respondent's evidence and, in any event, the motion for a directed verdict at the close of all the evidence, should have been granted for the following reasons: (1) That there was no evidence impeaching the respondent's settlement and release...