McCormick Lumber Co. v. Department of Labor and Industries

• Decision Date: 07 January 1941
• Docket Number: 27994.
• Citation: 7 Wn.2d 40,108 P.2d 807
• Parties: McCORMICK LUMBER COMPANY et al. v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

108 P.2d 807

7 Wn.2d 40

McCORMICK LUMBER COMPANY et al. v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 27994.

Supreme Court of Washington, En Banc.

January 7, 1941

Proceeding under the Workmen's Compensation Act by Emma Christina Sellin, compensation claimant, against the McCormick Lumber Company and the Pope & Talbot Lumber Company, employers, to recover for the death of claimant's husband, Olof Ferdinand Sellin, deceased. The claim was rejected by a supervisor of the Department of Labor and Industries on ground that deceased's death was not the result of an injury as defined and contemplated by the compensation act. On rehearing Before the joint board, the claim was allowed. On application of the employers, the matter was again reheard, and the joint board made an order sustaining the allowance, and made a further order charging the sum of $4,000 against employers' cost-experience. From those orders, the employers appeal to the superior court. From an adverse judgment of the Superior Court, the employers appeal.

Judgment affirmed.

SIMPSON and ROBINSON, JJ., dissenting.

Appeal from Superior Court, Kitsap County; H. G Sutton, judge.

Poe Falknor, Emory & Howe, of Seattle, for appellants.

Ryan Askren & Mathewson and Meyer Horowitz, all of Seattle, amici curiae.

Smith Troy, Atty. Gen., T. H. Little, of Olympia, and Robbins & Rickles, of Seattle, for appellant Sellin.

STEINERT Justice.

Emma Christina Sellin, whose husband, Olof Ferdinand Sellin, was engaged in extrahazardous employment at the time of his death, filed with the department of labor and industries a claim for a widow's pension. The claim was rejected by the supervisor of the department on the ground that the workman's death was not the result of an injury as defined and contemplated by the workmen's compensation act, Rem.Rev.Stat. § 7673 et seq. On rehearing by the joint board, however, the claim was allowed. Upon the application of the employers of the workman, the matter was again reheard, and, at the conclusion of that hearing, the joint board made an order sustaining the allowance of the pension, and, subsequently, made a further order charging the sum of $4,000 against the employers' cost-experience. From those orders, the employers appealed to the superior court, and from an adverse judgment by that court have appealed to this court.

Stated broadly, the question presented here is whether or not the death of the workman was caused by an injury sustained in the course of his employment, within the contemplation of the workmen's compensation act.

Olof Ferdinand Sellin was, at the time of his death on January 11, 1937, sixty-one years of age. He had been a logger all of his life, but during the two years immediately prior to January, 1937, his employment had been limited to six weeks' work in July and August of 1936. Prior to 1935, he had been employed intermittently by appellant McCormick Lumber Company, which we will hereinafter refer to as though it were the sole appellant.

In outward appearance, Sellin was a strong, robust man, and, so far as the record shows, had never had any serious illness nor had he ever complained of being sick or unable to work. However, as described by a fellow workman, he was 'kind of soft' from having been out of work so long. It appears from some of the testimony that in time past Sellin had been a very heavy drinker of intoxicating liquor, and that on that account a former employer had discontinued giving him further work. It is undisputed, however, that Sellin was, during recent years at least, an efficient and conscientious workman. Although he, at times, drank to excess, he limited his indulgences to week-ends, and drank only when away from his work.

On Monday, January 4, 1937, Sellin entered the employ of appellant as a pile cutter. On the day Before , he had gone from his home in Seattle to Port Ludlow, located on the west side of Puget Sound, where the work was to be done. During the course of that trip, he imbibed an excessive amount of intoxicating liquor and by Sunday night was very drunk. He reported for work the next morning, however, and worked throughout the week. So far as the record shows, he did his work satisfactorily. At the end of the week, and after leaving the logging camp, he again procured intoxicating liquor and became inebriated, though not to the extent of his experience the week Before .

On Monday morning, January 11, 1937, Sellin arose, apparently as usual, and ate a hearty breakfast. In company with Ed Olson, a fellow workman, he rode on the company's speeder from the camp to the point where the pile cutting was to be done, a distance of about three miles. Olson was seventy-four years of age, but had been working regularly and was in good physical condition. The men carried with them a saw, which had recently been sharpened, two axes, and two hammers. It was a cold, though quiet, morning, the temperature being below the freezing point, and the men were heavily clad.

Arriving at their destination at about eight o'clock, Sellin and Olson walked a distance of approximately three hundred feet, and entered upon their work of cutting piles. The ground in that vicinity was open and level. Each of the men 'undercut' a fir tree approximately twenty-four inches in diameter, and then both of them sawed down the two trees which had been undercut. The work of undercutting and sawing down the two trees consumed about twenty or twenty-five minutes. Sellin, complaining that his feet were cold, thereupon built a fire nearby. After warming himself Before the fire for fifteen or twenty minutes, he resumed his work and proceeded to undercut a third tree, preparatory to sawing it down. The process of undercutting the tree to a depth of four or five inches consumed about five minutes.

The two men then took the saw, which was six or seven feet long, and weighed five or six pounds, and began sawing the tree at the point of the undercut, which was three or four feet above the ground. As they sawed, the men were stationed on opposite sides of the tree and occupied normal standing positions. The work of undercutting was not particularly difficult, nor was any unduly strenuous effort required to pull the saw. The men were working at an ordinary speed, although it would have been considered fast for one who was not accustomed to the work or who was not in good physical condition. Sellin had made no complaint other than that he was cold, and seemed to be working in his customary manner.

The two men continued to saw for about five minutes, and had reached a point about two-thirds of the way through the tree, when suddenly Olson felt the saw jerk and heard Sellin groan. On looking around, Olson discovered that Sellin had fallen to the ground. It appears that Sellin had suddenly collapsed and died. During the sawing process, the tree had not swayed nor had the saw pinched. The jerk apparently was caused by Sellin's collapse. According to Olson's statement, there was no evidence that Sellin had been perspiring.

A post-mortem examination of the body revealed that the deceased had been suffering from chronic conditions of endocarditis, myocarditis, and gastritis, which conditions, according to the testimony of the coroner, had arrived at an acute stage about a week Before the death. The coroner also found a highly inflamed condition of the decedent's stomach, and at first suspected the presence of an irritant poison, but, on being informed that the deceased had been drunk a short time Before , concluded that it was alcoholic poisoning. No analysis of the gastric contents was ever made.

The evidence as to the cause of death consisted of expert opinions, and, as is so often the case, those opinions were in direct conflict. The coroner, a physician, testified that in his opinion the death was caused by the conditions found in the postmortem examination and as above related, and that such conditions would cause death even in the absence of any exertion on the part of the afflicted individual. To rebut that testimony, the department called as witnesses two heart specialists, residents of Seattle, one of whom had performed, during the preceding three years, over 1,650 autopsies, and the other of whom had limited his practice for over eighteen years to diseases of the heart.

The first of those two witnesses expressed his opinion unequivocally that the exertion of the workman at the time and under the circumstances described above was a very definite, contributing factor to his death, and that while the excessive use of alcohol would account for the gastritis that was found, it had no particular bearing upon the workman's demise. The other physician, in response to a lengthy hypothetical question embodying the evidence in detail, testified as follows:

'A. I would say that the exercise that he [Sellin] undertook was a contributing factor in his death. Q. Will you state why, Doctor? A. Because I think that called upon his heart for more exertion than his heart at that particular time was able to perform.'

As already indicated, the joint board after a review of the testimony made a finding that Sellin's death was attributable to the exertion undertaken at the time of his injury, and concluded that the death was compensable under the statute. Upon a review of the same evidence, the superior court affirmed the joint board's decision.

Under the statute in full force and effect at the time of Sellin's death, the decision of the department is to be taken by the court as being prima facie correct, and the burden of proof is upon the party attacking the decision. Rem.Rev.Stat. § 7697. Our cases upholding that rule are legion, and need not be cited.

An examination of the record leads us to the conclusion that...