McFarland v. Department of Labor and Industries

• Decision Date: 03 December 1936
• Docket Number: 26291.
• Citation: 62 P.2d 714,188 Wash. 357
• Parties: McFARLAND v. DEPARTMENT OF LABOR AND INDUSTRIES. [*]
• Court: Washington Supreme Court

62 P.2d 714

188 Wash. 357

McFARLAND v. DEPARTMENT OF LABOR AND INDUSTRIES. ^[*]

No. 26291.

Supreme Court of Washington

December 3, 1936

Department 1.

Appeal from Superior Court, Cowlitz County; H. W. B. Hewen, Judge.

Proceeding under the Workmen's Compensation Act by Stella M McFarland, claimant, widow of Charles Wesley McFarland employee, to obtain a widow's pension. From a judgment of the superior court, granting the pension, on appeal from orders of the supervisor and the joint board denying the application, the Department of Labor and Industries appeals.

Affirmed.

G. W Hamilton and J. A. Kavaney, both of Olympia, for appellant.

W. H. Sibbald, of Kelso, for respondent.

STEINERT Justice.

This is an appeal from a judgment of the superior court granting a widow's pension, in a proceeding arising out of the Workmen's Compensation Act (Rem.Rev.Stat. § 7673 et seq.) and tried Before the court without a jury.

On April 2, 1930, Charles Wesley McFarland, then sixty-six years of age, was engaged in extrahazardous work and, during the course of his employment on that day, sustained a fracture of the right femur. His claim for compensation was recognized, and provision for his time loss and medical aid was made, by the Department of Labor and Industries. The claim was closed by order of the supervisor of the department on August 28, 1931, with an allowance of time loss to August 2l, 1931, and twenty degrees permanent partial disability. From that order and award, the injured workman appealed to the joint board of the department, upon the ground that he was suffering a total disability, either temporary or permanent. After a hearing, the joint board reversed the order of the supervisor and made an additional allowance for time loss to April 5, 1932, but no additional allowance for either total or partial disability. Thereupon, the claim was again closed.

On June 9, 1932, the workman, claiming that, by reason of aggravation of the injury sustained, he was totally and permanently disabled, petitioned the joint board for a rehearing. The board reheard the matter and then entered an order sustaining the supervisor's second closing of the claim. An appeal was taken to the superior court, where, after a hearing, a judgment was entered July 24, 1933, awarding the workman an allowance of $840 for twenty-eight additional degrees of permanent partial disability. No appeal was taken from that judgment, nor was any further claim ever made to the department by the workman.

On February 22, 1934, Charles W. McFarland, the workman, committed suicide by hanging. Thereafter, his widow, the respondent herein, filed an application for a widow's pension. The application was denied by the supervisor, and subsequently by the joint board, on the ground that death was not the result of the injury alleged, or of trauma. An appeal was taken by the widow to the superior court, where, after a hearing, the order of the department was reversed and the widow was allowed a pension. The present appeal is from that judgment of the court.

Appellant's first five assignments of error relate to certain findings of fact and the conclusion of law drawn therefrom by the court. The question raised by the findings and conclusion is whether the workman came to his death as the result of deliberate intention to commit suicide. That question is a vital one, because Rem.Rev.Stat. § 7680, provides that, if injury or death results to a workman from his deliberate intention to produce such injury or death, neither the workman nor his widow, child, or dependent shall receive any payment whatsoever out of the accident fund.

As disclosed by the record, the case was tried by the court solely upon the testimony taken Before the joint board. The statement of facts reveals that the only testimony taken Before the board was that of the widow, her daughter, who was the stepdaughter of the deceased, a friend of the family, and a physician. No testimony was taken at the instance, or on behalf, of the appellant.

After considering the testimony, the court rendered a memorandum opinion and thereafter made its findings of fact, which, in addition to what has already been stated herein, set forth the following, as facts:

From the time of his injury until his death, Mr. McFarland was unable to do any work other than light chores about the house. His disability became aggravated by reason of the development of phlebitis, which is an inflammation of the veins and is very painful. The pain and distress grew to such an extent that, during the last few months of his life, his mind became affected, and he was subject to insane fits of distraction and violence, although previously he had been a peaceful individual, having affection for his wife and also for his stepchildren, who were living with him. His periods of insane distraction would come on suddenly, and on one or two such occasions he had threatened to kill himself, but each time was pacified by his wife.

On February 24, 1934, Mr. McFarland suddenly became incensed because of some slight delay in the noonday meal. Without any apparent provocation, he seized his stepdaughter and violently assaulted her, tearing off her dress and vehemently cursing every one present, including himself. His appearance was that of a wild and insane person. The respondent intervened and, after rescuing her daughter, mildly remonstrated with the husband about his conduct. Immediately thereupon, Mr. McFarland ran from the house to the barn in the rear and there hanged himself. A few minutes later, his wife went to the barn and found her husband hanging by a rope. He was then dead.

The court further found that the death of Mr. McFarland was not inflicted with any deliberation or any deliberate intent on his part, but that the act was committed in a moment of insane impulse; that his mind had become deranged because of the pain, suffering, and worry caused by the injury, resulting in an acute dementia or a maniacal derangement; and that he was not, at the time, capable of forming a deliberate intent on any subject whatever.

The evidence adduced by respondent was sufficient to make a prima facie case and, in the absence of any evidence to the contrary, justified the court in making the findings and drawing the conclusion that it did.

If a workman, while engaged in extrahazardous employment, sustains an injury, and the injury causes such pain and suffering as proximately results in insanity or in such mental condition as to render the workman subject to periods of delirium, and the workman during a period of such delirium takes his own life, the death may be attributed to the injury and, if so, is compensable under the Workmen's Compensation Act. Gatterdam v. Department of Labor and Industries, 185 Wash. 628, 56 P.2d 693.

Appellant's next assignment of error is based upon the refusal of the court to strike the testimony given by the respondent with reference to family occurrences and the declarations of the deceased. Appellant contends that respondent's testimony falls within the inhibition of the proviso contained in Rem.Rev.Stat. § 1211, which, so far as it is pertinent here, reads as follows: 'Provided, however, that in an action or proceeding where the adverse party sues or defends as * * * deriving right or title by, through or from any deceased person, or as the guardian or conservator of the estate of any insane person * * * then a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by him with, or any statement made to him, or in his presence, by any such deceased or insane person.'

Assuming for the sake of argument, that, in an action or proceeding of this kind, the claimant comes within the designation of an adverse party or as deriving right or title through a deceased person, or as guardian or conservator of the estate of an insane person, still the statute does not apply. The object of that statute is to prevent persons whose interests are adverse to the estates of deceased or insane persons from testifying to transactions had with, or statements made by, such deceased or insane persons. But the statute does not seek to prevent, nor does it prohibit, an interested...