Seattle-Tacoma Shipbuilding Co. v. Department of Labor and Industries, 29719.

• Decision Date: 24 October 1946
• Docket Number: 29719.
• Citation: 173 P.2d 786,26 Wn.2d 233
• Parties: SEATTLE-TACOMA SHIPBUILDING CO. v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

173 P.2d 786

26 Wn.2d 233

SEATTLE-TACOMA SHIPBUILDING CO. v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 29719.

Supreme Court of Washington, En Banc.

October 24, 1946

Proceeding under the Workmen's Compensation Act by Lena B. Johansen claimant, opposed by the Seattle-Tacoma Shipbuilding Company a corporation, employer, to recover compensation for the death of claimant's husband, John George Johansen. The Department of Labor and Industries through its supervisior rejected the claim, but the joint board reversed the supervisor's order and allowed the claimant's claim and the employer appealed to the superior court. The superior court entered judgment affirming the order of the joint board, and the employer appeals.

Judgment of the superior court reversed with direction to enter judgment denying claim and dismissing proceedings.

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

Bogle, Bogle & Gates, and Edward S. Franklin, all of Seattle, for appellant.

Smith Troy and Harry L. Parr, both of Olympia, and Graham K. Betts. of Seattle, for respondent.

STEINERT Justice.

This is an appeal by an employer from a judgment of the superior court awarding a widow's pension under the Workmen's Compensation Act, Rem.Rev.Stat. § 7673 et seq., for the death of a workman alleged to have resulted from an industrial accident.

The workman, John George Johansen, 67 years of age, was a painter By trade and as such was employed by Seattle-Tacoma Shipbuilding Company, appellant herein. Johansen died December 4, 1941, following an attack of appendicitis on November 29. A year later, November 25, 1942, his widow, Lena B. Johansen, appearing by an attorney, presented to the Department of Labor and Industries a claim for widow's pension. The claim stated that the cause of death was 'ruptured appendix.'

The department, through the office of its supervisor, investigated the matter and, upon consideration of the report of the investigation, the supervisor rejected the claim on February 10, 1943, on the ground that the workman's death was not the result of any injury or circumstance connected with his employment, but was due solely and exclusively to natural causes. The claimant widow, through her attorney, thereupon petitioned for a rehearing Before the joint board. In her petition the claimant stated that she '* * * will produce evidence that the burst appendix resulting in the death of George Johansen was directly and proximately the result of injury or strain incurred in the course of his employment, and that but for such injury or strain the death resulting from the bursted appendix would not have ensued.'

The petition was granted and a rehearing was held Before an examiner for the joint board upon oral testimony on May 28, 1943, which was 18 months after the death of the workman. The joint board, after reviewing the record made Before the examiner, reversed the order of the supervisor and entered in its stead an order allowing the widow's claim for pension and charging the accident cost experience of the employer with the sum of $4,500, under the provisions of Rem.Rev.Stat. (Sup.), § 7676. Thereupon, the employer, who had appeared at the rehearing, appealed to the superior court. Trial was had by the court, without a jory, upon the transcript of the testimony adduced at the rehearing and the file of the supervisor, certified and sent up by the department The court made findings and conclusions, upon which it entered judgment affirming the order of the joint board. The employer has appealed from the judgment of the superior court.

The burden was, of course, upon the claimant widow to prove in the rehearing Before the joint board that her husband, the workman, sustained an 'injury' compensable under the workmen's compensation act, and that such injury was a proximate cause of his death. If it can be said that her proof was insufficient as a matter of law to meet that burden, then the superior court erred in affirming the joint board's order.

The validity of the widow's claim rests entirely upon the testimony of the widow and two physicians called by her as witnesses. It is therefore necessary that we examine that evidence with some particularity.

Upon direct examination at the rehearing Before the joint board the claimant widow testified:

'Q. You remember the day that he [the decedent] first complained of his work down there? A. Yes, being sick.

'Q. Yes? A. Well, the night of the 29th of November, when he came home that morning, after he had his lunch, he went to work and worked an hour or two, and then he lifted something, and it slipped, and it pressed against his abdomen, and then the pain started.

'Mr. Franklin: I move that the answer be stricken on the ground that it is hearsay.

'Q. Did you see any evidence--A. He had all his clothes--he had his clothes full of paint. He got his shirt and everything on his stomach.

'Q. About where was that? A. Right here. I have said, gosh, I asked him, 'How did you get your clothes full of paint?' And he even had the buttons tore off. The way it slipped, it just rubbed the paint off on his clothes. He said, 'I am a painter, don't you know?'

'Mr. Franklin: I don't want to interrupt you. I would like to have the record show a continuing objection on the ground that all this testimony of this witness--the testimony this witness may give relative to the alleged statements made to her by her deceased husband----

'Mr. Cummins [the examiner for the department]: You may continue over the objection.

'Q. Was there paint on other parts of his clothes? A. Well, of course, overalls was full of paint. I couldn't tell from the overalls. He put a clean shirt on that afternoon when he left the house. I just gave him a clean shirt. I have noticed it on the shirt. I threw it in the rag bag and gave it away. I won't wash them after he was gone.

'Q. Did you testify that a button had been torn off?

'Mr. Franklin: Objected to as leading and suggestive.

'Q. Did Mr. Johansen go to work the next day? A. Will, he said, 'I wonder if I have to call the doctor,' so I wanted to get up and call the doctor, so in a minute or so, he said, 'There is a lot of fellows in the shipyard got the stomach flu, and I think I got the same.' When he came home, he said, 'I never had a pain in my stomach in all my life,' and I know he never complained about his stomach.

'Q. Did he go to work the next day? A. When came half-past two, I asked him, 'What are you going to do?' And I asked him if he was going to see the doctor, and he didn't answer, and he said, 'I am a going to the shipyard, and if I don't fell better, I tell them I can't work.'

'Q. Did he go to the yard? A. Yes, and even then he went to the nurse at the shipyard.

'Mr. Franklin: I object to this on the grounds it is hearsay.

'Q. He told you he had gone to the nurse? A. Yes, and the nurse told him, 'You go right home and call the doctor and go to bed.'

'Q. Did you meet him some time that afternoon? A. He knew that I was down at Pike Street Market to see a lady friend, and he just walked in to me, and then he told me what the nurse told him.

'Q. What did he do, then? A. Well, he looked too terrible, and he said he is terrible sick, and I said, 'You can't go home.' I said, 'It is too far out there to get the doctor.' I said, 'Get somebody right away."

On cross-examination by Mr. Cummins, the examiner for the joint board, Mrs. Johansen, the claimant widow, further testified:

'Q. When he first came home, he told you on the morning of the 30th, did he, that his stomach was unsettled and that he thought he had the stomach flu, is that what he told you? A. He said, 'After I pressed the thing against my stomach, then, the pain started,' and he said, 'I never had a pain in my stomach in all my life, and I wonder if I have to call a doctor,' and I said 'You know what to do.'

'Q. That isn't what I asked. Didn't he first tell you that he thought his stomach was unsettled and thought he had the flu, and afterwards he told you this other thing? A. No, he told me from the beginning that he had a pain after he lifted the thing, and the pain--the thing slipped, and the pain started. He told me he had a pain, and he said he never had a pain in his stomach in all his life.'

Following their meeting at the Pike Street Market in the afternoon, as testified by the claimant, Mr. and Mrs. Johansen went to the office of Dr. H. S. Hill who examined Mr. Johansen, diagnosed the case as acute appendicitis, and made arrangements for the patient's admission to the Columbus Hospital. At 8 o'clock that evening, December 3, 1941, Dr. Hill removed the diseased appendix, which was already ruptured. A second operation was performed at 4:30 p. m. on December 4, following which Mr. Johansen died at 6:25 that same evening.

Dr. Hill, examined as a witness for the claimant widow, testified that when Mr. Johansen first called on him with reference to his illness, he, the patient, complained of severe pains over the right lower quadrant of the abdomen, but gave no history of an industrial injury. The doctor further stated that he saw no evidence of external injury to the patient's abdomen or in the region of the appendix, and that, in his opinion, 'the case of appendicitis was just a diseased appendix following its natural course.'

Apparently realizing that the doctor's testimony was unfavorable to the claimant, her counsel addressed to the witness the following questions and in response received the following answers:

'Q. Incidently, Doctor, you and Mrs. Johansen have had some difficulties? A. Only that she wanted me to make a statement that this should be a State case and I refused. That was all.

'Q. You feel rather unfriendly toward her? A...