Sheldon v. State Department of Labor and Industries, 23679.

• Decision Date: 06 July 1932
• Docket Number: 23679.
• Citation: 168 Wash. 571,12 P.2d 751
• Court: Washington Supreme Court
• Parties: SHELDON v. STATE DEPARTMENT OF LABOR & INDUSTRIES.

12 P.2d 751

168 Wash. 571

SHELDON v. STATE DEPARTMENT OF LABOR & INDUSTRIES.

No. 23679.

Supreme Court of Washington

July 6, 1932

Department 1.

Appeal from Superior Court, Lewis County; H. E. McKenney, Judge.

Proceeding under the Workmen's Compensation Act by Jennie B. Sheldon for the death of her husband. From the judgment affirming a decision of the Department of Labor and Industry denying her claim, claimant appeals.

Affirmed.

Dysart & Ellsbury, of Centralia, for appellant.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for respondent.

MITCHELL J.

This is an appeal from a judgment denying to Mrs. Jennie B. Sheldon compensation under the Workmen's Compensation Act for the death of her husband. Upon his death, June 4, 1931, she filed in the Department of Labor and Industries a claim for an industrial insurance pension which was rejected. Upon a rehearing Before the joint board of the department, her claim was denied. She appealed to the superior court, where judgment against her was entered, from which she has appealed.

The cause was heard Before the joint board of the department and also in the superior court upon stipulated facts to the effect that the deceased was an employee of Lewis-Pacific Motors, Inc., of Centralia, which owned maintained, and conducted an automobile sales agency, garage and repair shop; that the duties of the deceased included the selling and demonstrating of automobiles to prospective purchasers and to oversee and direct the making of repairs on automobiles in the garage and repair shop and to answer emergency calls and to tow and assist in towing, disabled automobiles; that on June 4, 1931, the deceased, accompanied by another salesman of the same employer, went in an automobile used for demonstration purposes to Pe Ell for the purpose of selling an automobile; that the two called on the prospective purchaser, and while returning to Centralia in their automobile the deceased met with the accident that caused his death.

The orders of the department and its joint board and the judgment of the superior court against the plaintiff were entered upon the decision of finding that the sale of automobiles in which the deceased was engaged at the time of the accident resulting in his death was not an extrahazardous occupation under the Industrial Insurance Act.

The question is, not whether the deceased was killed while in the course of his employment, but as appellant states: 'The only question involved in the case is whether or not Mr Sheldon, at the time he met with the accident which resulted in his death, was employed in extra-hazardous employment under the Workmen's Compensation Act.'

One must not become confused under the rule announced in the apparently similar case of Everett v. Department of Labor and Industries (Wash.) 9 P. (2d) 1107, 1110. That case and this differ in a most important particular, because in that case, as stated in the opinion, 'the question whether a workman whose employer is engaged in an extrahazardous occupation, may be employed in a dual capacity, is not involved in this case'--a conclusion that was reached upon an analysis of the statute classifying as extrahazardous the work in which the deceased was engaged at the time he was killed.

Here however, the statutes, sections 7674 and 7676, Rem. Comp. Stat. Supp. 1927 in...