Shoopman v. Calvo

• Decision Date: 23 January 1964
• Docket Number: No. 36537,36537
• Citation: 63 Wn.2d 627,388 P.2d 559
• Court: Washington Supreme Court
• Parties: David SHOOPMAN and Jean Shoopman, his wife, Appellants. v. Irving CALVO and Jane Doe Calvo, his wife, and Irving Calvo, d/b/a Washington Pneumatic Applicators, and Herbert Stombaugh, Respondents.

Page 627

63 Wn.2d 627

388 P.2d 559

David SHOOPMAN and Jean Shoopman, his wife, Appellants. v. Irving CALVO and Jane Doe Calvo, his wife, and Irving Calvo d/b/a Washington Pneumatic Applicators, and Herbert Stombaugh, Respondents.

No. 36537.

Supreme Court of Washington, Department 1.

Jan. 23, 1964.

Roy E. Jackson, and Daniel G. Goodwin, Seattle, for appellants.

Frank H. Roberts, Jr., Seattle, for respondents.

HUNTER, Judge.

This is an appeal from an order of the trial court granting a summary judgment in favor of the defendants (respondents), Irving Calvo, his wife, and Herbert Stombaugh.

The plaintiff (appellant), David Shoopman, was an employee of Irving Calvo, doing business as the Washington Pneumatic Applicators. Plaintiff and two fellow workmen, Joel Heimbigner and co-defendant Herbert Stombaugh, had been ordered to work on a job in Port Townsend, Washington. The union contract provided that they were to be paid at an hourly rate for the work performed at the jobsite, and since the jobsite was some distance from Seattle an additional $5 per day was to be paid for subsistence. the extra money was used to defray living expenses if the employee desired to live near his place of work, or the money could be used to cover travel expenses from Seattle. The employer furnished a pickup truck for the use of Stombaugh, the foreman on the Port Townsend project. On the day of the accident, December 13, 1959, Stombaugh was driving, and Shoopman and Heimbigner were passengers. Stombaugh lost control of the vehicle in the fog and crashed into a concrete bridge abutment. The plaintiff suffered severe personal injuries.

On December 21, 1959, an accident report was filed with the Department of Labor and Industries on behalf of the plaintiff, and an investigation was conducted to determine if the plaintiff was injured within the scope of his employment. The department found that he was within the scope of his employment and awarded him medical and hospital expenses, and time loss according to the provisions of the Industrial Insurance Act. The plaintiff did not appeal from the order of the department and he accepted all funds tendered to him.

On July 20, 1960, the plaintiff filed this action at law for negligence, contending that he was not within the scope of his employment when the accident occurred, and that he is not bound by the decision of the department. The trial court granted summary judgment in favor of the defendants, from which the plaintiff appeals.

The plaintiff contends that the department erred in finding that he was covered by the Industrial Insurance Act. He contends that he was merely 'on his way to work' and was not, therefore, 'within the scope of his employment' as that phrase has been interpreted by this court. We do not find it necessary to answer this contention since the determination of this issue by the department is res judicata in view of the record in this case.

The intention of the legislature is clear in the Industrial Insurance Act. It imposes burdens on industry and abolishes rights of action by employees against employers for personal injuries to the exclusion of every other remedy, except as provided in the act. Koreski v. Seattle Hdwe. Co., 17 Wash.2d 421, 135 P.2d 860 (1943).

In Abraham v. Department of Labor & Industries, 178 Wash. 160, 34 P.2d 457 (1934), we said:

'Under the express terms of statutory law and in accord with its beneficial purposes, the department has original and exclusive jurisdiction, in all cases where claims are presented, to determine the mixed question of law and fact as to whether a compensable injury has occurred. It is as much its duty in each case to determine whether the workman was within the protection of the act at the time of the injury as it is to determine the fact of injury and extent thereof. The facts as to the nature of the employment are a vital part of each inquiry, and must necessarily be determined before a result can be reached allowing the claim.

'Since the department is the original and sole tribunal with power to so determine the facts and its findings are reviewable only on appeal, it must follow that a judgment by it, resting upon a finding of fact that the workman was so employed at the time of injury as to be within the act, is final and conclusive upon the department and upon the claimant unless set aside on an appeal authorized by the statute, or unless fraud, or something of like nature, which equity recognizes as sufficient to vacate a judgment,...