Sheppard v. Department of Labor and Industries

• Decision Date: 02 August 1937
• Docket Number: 26282.
• Citation: 70 P.2d 792,191 Wash. 80
• Parties: SHEPPARD v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

70 P.2d 792

191 Wash. 80

SHEPPARD v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26282.

Supreme Court of Washington, En Banc.

August 2, 1937

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Proceeding under the Workmen's Compensation Ast by Edith M. Sheppard for the death of Herbert E. Sheppard, her husband, claimant opposed by the Department of Labor and Industries.From a judgment on a verdict reversing an order of the Department denying an award, the Department appeals.

Reversed with directions.

G. W Hamilton and J. A. Kavaney, both of Olympia, for appellant.

Wright & Wright and Vanderveer & Bassett, all of Seattle, for respondent.

BEALS Justice.

The plaintiff, Edith M. Sheppard, and Herbert E. Sheppard were for many years husband and wife, and residents of the city of Seattle, where they maintained a home occupied by themselves and their two grown daughters.For a long time prior to 1934 Mr. Sheppard had been in the employ of the Washington Laundry as a driver.The home life of the Sheppards was happy.Mr. Sheppard's accounts with his employer were in perfect order.He was not indebted to any person, and, as far as the record shows, his life was free from worry of any kind, save some threat to the security of his employment, he having been warned that he would have to increase the income from his laundry route.This he had done, and the record indicates that his job was fairly secure.The occupation of laundry driver is classified by the Workmen's Compensation Act(Rem.Rev.Stat. § 7674) as extrahazardous, and it is admitted that Mr. Sheppard was within the protection of the act.

On the morning of October 27, 1934, Mr. Sheppard left his home in company of a friend and neighbor, Gus Seefelt, who was also employed by the Washington Laundry as a driver, and proceeded to his place of employment.Prior to leaving his home, Mr. and Mrs. Sheppard discussed a dinner engagement which they had for that evening.On arrival at the plant, Mr. Sheppard loaded his truck with the laundry which he was to deliver, and departed.

It appears that, somewhat prior to noon, Mr. Sheppard, while driving his truck down a steep grade on Gilman avenue, lost control of his car, which left the paved portion of the highway and struck a telephone pole a glancing blow, after which the truck continued down the hill and finaly stopped, after colliding with a parked automobile owned by a member of the city five department.The exact nature of the collision between the truck and pole is not shown, but, after the truck came to rest, a front wheel was found to be damaged, and there was a considerable dent on the left side near the driver's seat.The owner of the car with which Mr. Sheppard's truck collided appeared upon the scene immediately after the accident, and spoke to Mr. Sheppard, who had stepped down from the truck.This witness testified that he asked Mr. Sheppard if he was hurt; also inquiring concerning the repair of the parked car.The witness stated that Mr. Sheppard apparently did not desire to talk about the matter, appearing nervous and 'rather shaky.'Mr. Sheppard did not complain of having received any injury, and, as it seemed to the witness, did not desire to discuss the accident or its results.It appeared that some implement had slipped under the foot brake, and that this at least contributed to the driver's inability to control the truck.The witness, not knowing what had occasioned the accident, thought that possibly Mr. Sheppard had been drinking.It having been established that this surmise was not well founded, the witness and a bystander assisted in placing Mr. Sheppard's truck in condition to proceed on its way.As the damages to the parked car were slight, the owner thereof was not particularly concerned about the matter, and, Mr. Sheppard's truck having been placed in order, he drove away.He later appeared at the home of a customer, Mrs. Alice Johnson, over a mile from the scene of the accident, at about a half after one o'clock.

Mrs. Johnson testified that she had known Mr. Sheppard about a year and a half, during which period he had been collecting and delivering her laundry.She stated that upon the day in question he appeared excited, flustered, and hurried; that his face was somewhat flushed, and that his eyes had an unusual appearance; that, instead of being cheerful and talkative, Mr. Sheppard was rather quiet.He said nothing about having had an accident, or having received any injury.Mr. Sheppard was next seen at about two o'clock, when he stopped his truck on Olympic place, turned off the motor and locked the ignition, leaving the key in the switch.A witness saw Mr. Sheppard walk down the street, proceeding in the general direction of the waterfront, which was two or three blocks distant.

As far as the record shows, Mr. Sheppard was not again seen alive, but on November 15th following, his body was found on the shore of Whidby Island.A valuable watch and his purse containing a considerable sum were found in his pockets.His overcoat, together with four bundles of laundry to be delivered, and a suit of clothes which he had picked up to be cleaned, had been found in the truck.An autopsy was performed, the surgeon testifying that the body had been in the salt water for two or three weeks.The body bore evidence of contusions, and the right anklebone was broken.The surgeon stated that, in his opinion, death was occasioned by drowning.Because of the condition of the head, it was not determined whether or not the skull had been fractured.It appears that a body entering the water near Elliott bay would probably have been carried to the shore of Whidby Island at or near the place where Mr. Sheppard's body was discovered.

Mrs. Sheppard filed a claim with the Department of Labor and Industries, which rejected the same.After an appeal to the joint board, evidence was taken Before an examiner, and, after a hearing, the action of the supervisor in rejecting the claim was sustained.Mrs. Sheppard then appealed to the superior court, where she seasonably demanded a jury trial.A motion to suppress the demand for a jury having been denied, the action came on regularly for trial Before the court and a jury, the latter returning a verdict in favor of Mrs. Sheppard.Counsel for the department, having been present in court when the verdict was returned, orally moved for an order vacating the verdict of the jury and for judgment in the department's favor notwithstanding the verdict, stating at the time that he did not move for a new trial.No written motion was interposed, but the oral motion was argued at a later date.Counsel for Mrs. Sheppard objected to the motion being considered, for the reason that no proper motion had ever been made.The court, however, listened to argument and indicated that the motion would be granted.Upon further reflection, however, the trial court was of the opinion that no valid motion had been made, and the judgment upon the verdict was entered, from which the department has appealed.

Several errors are assigned, only two of which need be noticed, namely, the denial of appellant's motion for a directed verdict or in the alternative for judgment in appellant's favor as matter of law, interposed at the close of respondent's case (appellant having introduced no evidence save a report made by respondent's daughter to the police department, which was admitted by stipulation), and the entry of judgment in respondent's favor.These assignments present the question of the sufficiency of the evidence to support the verdict and the judgment entered pursuant thereto.

Under our practice, the making of a motion for a new trial, save as to the review of certain trial errors, is not a prerequisite to the review of a judgment on appeal, and when, as here, the sufficiency of the plaintiff's evidence to support a judgment was seasonably challenged and the challenge denied, no motion by the defendant for judgment in his favor notwithstanding an adverse verdict need be made in order to present to this court on appeal the correctness of the ruling on the challenge.Of course, if, after an application for judgment in defendant's favor as matter of law at the close of plaintiff's case, the defendant introduced evidence, the challenge should be renewed at the close of the entire case, if any legal inference favorable to plaintiff can be drawn from the evidence introduced by the defendant.Here, the only evidence introduced by appellant was the police record of the report made by respondent's daughter concerning her father's disappearance, and this report contains nothing which by any remote possibility can be considered as aiding any of respondent's contentions.

The question of the sufficiency of respondent's evidence to support a verdict in her favor is thereby presented by the record without considering the sufficiency of the oral motion made by appellant's counsel for judgment in appellant's favor notwithstanding the verdict.It is therefore unnecessary to discuss the question of whether a motion for judgment notwithstanding the verdict must be presented in written form or whether the same may be made orally.

The record contains no evidence as to where the deceased entered the waters of Puget Sound, nor any evidence as to the time of that event, save that of the surgeon who performed the autopsy.He testified that the body appeared to have been in the water two or three weeks.Manifestly, the burden rested upon respondent to introduce evidence which would support a finding of the jury to the effect that Mr. Sheppard, during the course of his employment, received some injury (within the statutory definition), and that from such injury his death resulted.

The evidence shows beyond...