McLaren v. Department of Labor and Industries

• Decision Date: 09 November 1940
• Docket Number: 27763.
• Citation: 6 Wn.2d 164,107 P.2d 230
• Parties: McLAREN v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

107 P.2d 230

6 Wn.2d 164

McLAREN v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 27763.

Supreme Court of Washington

November 9, 1940

Department 1.

Proceeding under the Workmen's Compensation Act by Elsie McLaren claimant, opposed by the Department of Labor and Industries of the State of Washington. From a judgment for the Department notwithstanding a verdict of a jury for claimant the claimant appeals.

Reversed and remanded.

MILLARD J., dissenting.

Appeal from Superior Court, King County; Chester A. batchelor, judge.

J Speed Smith and Evans, McLaren & Lane, all of Seattle, for appellant.

G. W. Hamilton, J. A. Kavaney, and T. H. Little, all of Olympia, for respondent.

ROBINSON Justice.

D. E. McLaren died on May 24, 1937. The death certificate gave the cause as lobar pneumonia, with the date of onset as May 17th. For some time preceding the event, the deceased had been regularly employed in a Seattle lumber mill. He left a widow and three small children surviving. On June 8th, Mrs. McLaren filed a claim with the department for a pension for herself and children, in which the cause of death was alleged to be 'a serious blow received at the mill causing pneumonia.' On August 9th, the supervisor of industrial insurance entered the following order: 'It is hereby ordered that the claim for pension filed by Elsie McLaren be rejected for the reason that there is no proof of an injury sustained by the deceased D. E. McLaren during the course of employment, nor was death the result of the injury alleged as defined and contemplated by the workmen's compensation act.'

An appeal was taken to the joint board. Evidence on behalf of the claimant and on behalf of the department was taken Before an examiner. No member of the joint board was present at the hearing. After reviewing the record, the joint board concluded: 'That there is no connection between the death and the alleged injury; that the supervisor's action was correct and should be sustained.'

The board did not, in terms, find that the deceased had not suffered an injury, but we infer, from the repeated use of such expressions as 'alleged injury' and 'allegedly struck' in the recitals of the record leading up to its conclusions, that it was of the opinion that the deceased had not even been injured.

The matter was appealed to the superior court of King county, and there heard Before a court and jury in September, 1938. The jury found for the claimant. A motion for a new trial, or, in the alternative, for judgment notwithstanding the verdict, was interposed. These motions were not brought on for hearing until February, 1939. At that time, leave was given to file written briefs. The last of these was not received by the trial court until March 22nd. On April 10th, the trial judge filed a most carefully prepared and exhaustive opinion in which he arrived at the conclusion that the motion for judgment notwithstanding the verdict should be granted. Subsequently, he entered findings to the effect that the deceased was injured while engaged in extrahazardous employment, but that there was not sufficient proof that he died as a result of that injury, and a judgment of dismissal was entered.

The principal assignment of error on appeal is that the trial court erred in granting judgment notwithstanding the verdict. This will necessitate a review of the evidence, but, Before that is undertaken, it will be necessary to define the principles which must govern us in passing upon the assignment.

Under existing law, the primary inquiry would be, was there any evidence to support the verdict? For verdicts, rendered in such cases as this, now have the same force and effect as in actions in law. Alfredson v. Dept. of Labor and Industries, Wash., 105 P.2d 37. Unfortunately for the appellant, chapter 184, page 579, Laws of 1939, so providing, did not become effective until midnight of June 7, 1939. At the time the trial court ruled upon the motion for judgment notwithstanding the verdict, the verdict was merely advisory, and it would have been error to treat it as mandatory and binding. Hodgen v. Dept. of Labor and Industries, 194 Wash. 541, 78 P.2d 949.

Obviously, one who sees and hears a witness testify has a better opportunity to determine the weight to be given his testimony than one who merely reads a transcript of it. Because of this fact, it is a universal rule that appellate courts, in reviewing the findings of inferior courts upon a written record, will not readily set such findings aside, if the inferior tribunal saw and heard the witnesses. This rule has no application in the instant case. Neither the joint board nor the trial judge saw or heard the witnesses. They merely read a transcript of the testimony, and were in no better position to judge of its weight than we are. However, it does not follow from this that there is no presumption in the instant case in favor of the findings of the joint board. Rem.Rev.Stat. § 7697, provides, in part, as follows: '* * * In all court proceedings under or pursuant to this act [workmen's compensation act] the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same. * * *'

The appellant states that this provision first came into the act in 1927 when the law required hearings to be held Before the board or some member thereof, and that the laws of 1929 provided for the first time that hearings might be held Before an examiner, and it is argued: 'It is extremely doubtful whether the legislature intended this presumption to extend to this new departure in procedure by which board members may merely read the transcript of the testimony.'

We reject this theory. The provision remains as an integral part of the compensation act and must be given such effect as its language warrants.

It is said, in the memorandum opinion of the trial court, that none of the decisions of this court has definitely stated the character of the presumptive effect of the decisions of the department when the evidence is taken Before an examiner and merely read by the joint board. The presumptive effect in such circumstances must be determined from a construction of the statute above quoted: '* * * the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same. * * *'

This language is simple and direct. It means that if, in the opinion of the reviewing viewing court, the evidence as to a factual issue is evenly balanced, the finding of the department as to that issue must stand; but, if the evidence produced by the party attacking the finding preponderates in any degree, then the finding should be set aside. In Ivey v. Dept. of Labor and Industries, Wash., 102 P.2d 683, 684, a case decided since the trial judge rendered his memorandum opinion, we said, in construing the statute above quoted: '* * * they [the appellate courts] must accept the determination of the department as prima facie correct, and only to be set aside if the burden of proof has been met by the party attacking it; * * *.' We pass now to a consideration of the evidence. As a basis for its conclusion, the joint board reviewed the evidence in its 'Summary of Record and Proceedings.' The first paragraph of this review reads as follows: 'Subsequent to the Joint Board's order of September 20, 1937 a hearing was had at which time Odal Vicklund, called as a witness on the petitioner's behalf, testified that the had known Mr. McLaren at the Seattle Cedar Lumber Company's mill; that they worked together; that on an unremembered day in late April, 1936 the witness saw a board fall off a hook of the piling machine, the board being about 1"' x 10"' by 10 feet, and striking the claimant on his left side as he stooped over to pick up a stick, the board hitting him about the second or third rib from below on the left side; that the claimant straightened up, made a sort of face, probably missed putting on a board on to the next three or four hooks, but continued to feed the piling machine thereafter for ten or fifteen minutes until quitting time.'

To this should be added that Vicklund testified that two or three days after the accident McLaren told him that, although he had not consulted a doctor, the injury which he received from the falling board had bothered him and was getting worse. The joint board summarized the testimony given by Mrs. McLaren, as follows: 'Thereafter the petitioner, called as a witness on her own behalf, testified that she was in Hillsboro, Oregon, in early April, 1937, returning to Seattle about April 25, 1937; that upon her return her husband, the claimant, stated he had been hit on the side in the mill, the claimant indicating the left side about the lower two or three ribs; that he had a little lump there about the size of a man's thumb nail which looked as if the skin had been knocked off; it was scratched a little bit and discolored; that he was coughing up blood; that he continued thereafter to cough frequently and so violently that it would be necessary for him to hang on some piece of furniture to steady himself; that this spitting, which included spitting up of blood, continued right up until the time he went to the hospital and he appeared to be getting constantly worse from the date of her return until his death. That at the time of his injury he stated he thought he had broken a rib.'

This includes all the material points in Mrs. McLaren's testimony except that she testified that during that period Mr. McLaren could not sleep on his left side on account of the pain. The summary continues: 'Carl Hyppa, called as a witness on the petitioner's behalf, testified that he had worked with the claimant; that about April, 1937 the claimant...