Omeitt v. Department of Labor and Industries

• Decision Date: 31 October 1944
• Docket Number: 29415.
• Citation: 21 Wn.2d 684,152 P.2d 973
• Parties: OMEITT v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

152 P.2d 973

21 Wn.2d 684

OMEITT v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 29415.

Supreme Court of Washington

October 31, 1944

Department 1.

Proceedings under the Workmen's Compensation Act on claim of Theodore Omeitt for compensation for permanent partial disability sustained while engaged in extrahazardous employment. From a judgment on a verdict substantially increasing amount of award made by Supervisor of Industrial Insurance, which award had been upheld by Department of Labor and Industries, the department appeals.

Affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Smith Troy and Harry L. Parr, both of Olympia, for appellant.

Griffin & Gershon, of Seattle, for respondent.

STEINERT, Justice.

Plaintiff was injured in February, 1942, while engaged in extrahazardous employment as defined and classified in the Workmen's Compensation Act. He was hospitalized, given medical treatment, and reimbursed for his time loss. His claim for compensation, filed with the department of labor and industries, was closed by the supervisor of industrial insurance in June, 1942, with an award of $418.80 for permanent partial disability. Being dissatisfied with the amount of the award, plaintiff petitioned for and was granted a rehearing by the joint board. At the rehearing, testimony of both lay and expert witnesses was taken. Upon consideration of the entire record Before it, the joint board sustained the order of the supervisor. Plaintiff thereupon appealed to the superior court, where trial was had by jury upon the departmental record. The jury returned a verdict for the plaintiff in a sum considerably greater than the amount of the original award. The department moved for judgment notwithstanding the verdict. The motion was denied, and judgment on the verdict was entered. The department appealed.

The sole error assigned by the appellant department is the refusal of the trial court to grant it a judgment notwithstanding the verdict.

Under chapter 184, Laws of 1939, p. 579 (Rem.Rev.Stat.Supp. § 7697-2 [P.C. § 3488-21]), the verdict of a jury in industrial insurance cases has the same force and effect as a verdict in actions at law. Alfredson v. Department of Labor &amp Industries, 5 Wash.2d 648, 105 P.2d 37; Calkins v Department of Labor & Industries, 10 Wash.2d 565, 117 P.2d 640; Cooper v. Department of Labor &amp Industries, 11 Wash.2d 248, 118 P.2d 942.

It is the firmly established rule that a motion for judgment notwithstanding the verdict involves no element of discretion and will not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict. Hart v. Hogan, 173 Wash. 598, 24 P.2d 99; Tjosevig v. Butler, 180 Wash. 151, 38 P.2d 1022; Stevich v. Department of Labor & Industries, 182 Wash. 401, 47 P.2d 32; Gross v Partlow, 190 Wash. 489, 68 P.2d 1034; Gibson v. Spokane United Rys., 197 Wash. 58, 84 P.2d 349; Griffin v. Cascade Theatres Corp., 10 Wash.2d 574, 117 P.2d 651; Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wash.2d 631, 134 P.2d 444.

In ruling on a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party against whom the motion is made, and all material evidence favorable to the contention of the party benefited by the verdict must be taken as true. Larpenteur v. Eldridge Motors, Inc., 185 Wash. 530, 55 P.2d 1064; Boyd v. Cole, 189 Wash. 81, 63 P.2d 931; Hurst v. Peterson, 189 Wash. 169, 64 P.2d 788; Caylor v. B. C. Motor Transportation, Ltd., 191 Wash. 365, 71 P.2d 162; Corbaley v. Pierce County, 192 Wash. 688, 74 P.2d 993; Moen v. Chestnut, 9 Wash.2d 93, 113 P.2d 1030; Peterson v. Mayham, 10 Wash.2d 111, 116 P.2d 259; Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265.

If there is substantial evidence supporting the verdict of the jury, as distinguished from a mere scintilla of evidence, the verdict must stand. Alfredson v. Department of Labor & Industries, supra; Darling v. Department of Labor & Industries, 6 Wash.2d 651, 108 P.2d 1034; Calkins v. Department of Labor & Industries, supra; Husa v. Department of Labor & Industries, Wash., 146 P.2d 191.

By 'substantial evidence' is meant that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. Thomson v. Virginia Mason Hospital, 152 Wash. 297, 277 P. 691. For other definitions of the term 'substantial evidence,' see 40 Words & Phrases, Perm.Ed. p. 499, and 1944 Cumulative Annual Pocket Part, p. 100.

With these rules in mind, we proceed to a consideration of the evidence adduced by the respondent. His own testimony may be briefly stated as follows:

On February 6, 1942, he was engaged in wrecking a four-story building. In the course of the work, a fellow employee pulled from underneath the respondent a timber on which the latter was then standing, causing him to fall a distance of two and a half stories and strike upon the jagged edges of what had been a steel and iron fire escape. He was seriously injured in various parts of his body, particularly his back, right arm, and right leg. Three of the transverse processes of the lumbar vertebrae were fractured; a piece of jagged metal, two inches wide, pierced through his right leg; and the flesh and muscles of his right arm above the elbow were cut and a part of the bone was slivered off. He was taken to a hospital where he remained until March 19th, during the greater part of which time his arm was in a cast.

In the early part of May, 1942, respondent had recovered sufficiently to go to work again, but did not resume his original employment. Instead, he took a job as an electrician under another employer. Since that time, however, he has not been able to do any heavy work. His back gives him considerable trouble, and when he bends over he frequently is unable to straighten up again. At times, he cannot get up from his bed in the morning without assistance. The grip in his right hand is weak, and his elbow is stiff to the extent that he cannot touch his shoulder with the tips of his fingers. The calf of his leg is very tender in the region where it was cut, and from the calf to his toes the leg is numb. He also suffers frequent headaches. Prior to his injuries he was a strong, able-bodied man, capable of doing heavy work, but since the accident he not only suffers much pain but is limited to light forms of employment.

Respondent's principal witness was a physician who examined him in November, 1942, six months after respondent had returned to work, and again on the day of the hearing Before the joint board. The physician testified at length with reference to the history of the case as given to him by the respondent and also with reference to his physical examination of the respondent on the same occasion. The doctor's recitation of the history of the case was practically the same as that given by the respondent in his own testimony. The witness then testified that respondent was able to bend forward bringing his hands within six inches of the floor, but to do so was very painful, indicating a stiffness in the back; that respondent's lower spine is sore and tender to touch; straight leg bending causes pain through the lower spine, as does also cross-leg bending.

The physician then described the scars on respondent's right leg and testified that there was little or no sensation in the leg from the calf to the great toe; that the grip of respondent's right hand was only twenty-five per cent of normal. He also described a scar where the upper arm had been cut,...