Seattle Can Co. v. Department of Labor and Industries of Washington

• Decision Date: 03 April 1928
• Docket Number: 20843-20846.
• Citation: 147 Wash. 303,265 P. 739
• Parties: SEATTLE CAN CO. v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON et al. (three cases. NOEL v. SAME.
• Court: Washington Supreme Court

265 P. 739

147 Wash. 303

SEATTLE CAN CO. v. DEPARTMENT OF LABOR AND INDUSTRIES OF WASHINGTON et al. (three cases.

NOEL v. SAME.

Nos. 20843-20846.

Supreme Court of Washington

April 3, 1928

Department 1.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Three separate proceedings under the Workmen's Compensation Act by Mrs. A. Bridge and others. An order of the Department of Labor and Industries rejecting the claims was, on appeal by the Seattle Can Company, employer and the personal representative of one deceased employee, reversed by the superior court, and the Department of Labor and Industries and others appeal. Affirmed.

John H Dunbar and Mark H. Wight, both of Olympia, for appellants.

Huffer Hayden, Merritt, Summers & Bucey and S. H. Kelleran, all of Seattle, for respondents.

TOLMAN J.

These cases all come here on the same record, and by stipulation of counsel are practically consolidated for the purposes of this appeal.

Three women, employed by the Seattle Can Company during the spring and early summer of 1924, became affected with what is known as benzol poisoning. Two apparently have or will recover, and one died. Claims were presented to the Department of Labor and Industries, and rejected on the ground that the conditions complained of were not due to any fortuitous event, but were in the nature of an occupational disease. The Seattle Can Company, the employer, appealed from the order of the department rejecting these claims to the superior court for King county, and the personal representative of the deceased employee also appealed in that case, making four cases in the superior court, but involving only the three so-called accidents. After a trial on the merits, the superior court reversed the action of the department in all of the cases and remanded them for classification and award as the law directs. The department has appealed, and presents here the single but by no means simple question, Was there a fortuitous event within the meaning of the Workmen's Compensation Act? The act itself (section 7675, Rem. Comp. Stat.) provides:

'The words 'injury' or 'injured' as used in this act refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.'

So, if the workers here involved contracted an occupational disease as distinguished from an injury caused by a fortuitous event, they are entitled to no relief under the act, but must seek it elsewhere.

The facts essential to our present inquiry, as found by the trial court, are:

'That appellant Seattle Can Company is a corporation organized and existing under and by virtue of the laws of the state of Washington, with its principal place of business in Seattle, King county, Wash., and has paid its last license fee due the state of Washington. That at all the times above mentioned while the said Mrs. A. Bridge was working for, and for many years prior thereto, the Seattle Can Company was and has been operating a can-manufacturing factory in King county, Wash., and during all said time, in compliance with the laws of the state of Washington relating to employers engaged in an extrahazardous industry or occupation, has paid into the treasury of the state of Washington a sum equal to the per cent. of its pay rolls as required by law, and in pursuance to its classification thereunder.

'That in the process of making cans in the room in said factory where said Mrs. A. Bridge was working, a process or system was regularly employed by said can company, whereby a compound was used which contained benzol and rubber in solution, which, by mechanical process, was deposited as a liquid around the edge of the tops of cans manufactured by said plant to form a rubber sealing compound when the benzol was evaporated from said rubber in solution through mechanical contrivances used in said room. That said contrivances for abstracting the benzol from said compound consisted of a dryer heated by gas with natural ventilation caused by the rising of the hot air passing through said drier with the benzol mixed therewith through pipes into the open air which was intended to, and could have been made to carry off all of the evaporated benzol, but which failed to do so. That for many years prior to the employment of said Mrs. A. Bridge in 1924, the same kind of benzol compound had been used with the same contrivance for drying and ventilating, and with the room in which such drying and ventilating machinery was situated, containing two open doorways out into the air and having on one side thereof an opening for the air to circulate through said room from the other part of the factory, and that, by reason of such conditions of ventilation, all of the benzol which escaped in said room was carried off, and there had not been any case of benzol poisoning at said factory previous to the summer of 1924.

'That in the fall of 1923 and spring of 1924 an addition was placed on said building at said room whereby the opening into the open air through said doorways was obstructed and the opening into the factory was closed; the rest of the machinery drying and ventilating apparatus in said room remaining the same. That the Seattle Can Company, in making such alterations, did so without knowledge that the result thereof would be to lessen the ventilation in said room that benzol would accumulate therein, and that its employee, said Mrs. A. Bridge, might become poisoned by an excessive quantity of such poisonous substance referred to as benzol escaping into and accumulating in said room. That by reason of the fact that benzol did escape into said room and was not removed by proper ventilation, Mrs. A. Bridge was poisoned. That a like rubber compound, applied as aforesaid had been used for many years in the plant of the Seattle Can Company as the plant existed prior to said additions having been placed thereon as aforesaid, without any injurious effect to its workers prior to the season of 1924, and that the associated plants of the Seattle Can Company at Los Angeles and other Pacific points had also used a like benzol compound and drying machinery in a similar manner to that used by the Seattle Can Company, before the addition to said building, and that at none of said plants had there been any benzol poisoning during their many years of operation. That benzol is a volatile substance, and an increase in heat causes the same to evaporate in greater quantities.

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