Stark v. State Indus. Acc. Commission

• Decision Date: 31 January 1922
• Citation: 103 Or. 80,204 P. 151
• Parties: STARK v. STATE INDUSTRIAL ACC. COMMISSION.
• Court: Oregon Supreme Court

204 P. 151

103 Or. 80

STARK v. STATE INDUSTRIAL ACC. COMMISSION.

Supreme Court of Oregon

January 31, 1922

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Proceeding by Wanda Stark, as an individual, and Wanda Stark, as administratrix of the estate of Ray E. Stark, deceased, and also as general guardian of Raye Maxine Stark, an infant before the State Industrial Accident Commission, for an award.From a decision of the Accident Commission disallowing the claim, an appeal was taken to the circuit court.From judgment of the circuit court that compensation should be allowed, the Accident Commission appeals.Judgment affirmed.

Upon the trial of this cause in the lower court a stipulation of the facts was entered into relative to the following questions:

"First.Whether or not decedent, Ray E. Stark, met his death as a result of an accident arising out of and in the course of his employment under the Workmen's Compensation Law of Oregon.

"Second.In case the first question is answered in the affirmative is Wanda Stark, widow of decedent, entitled to compensation on her own behalf as distinguished from compensation on behalf of her child, in view of the facts relating to her separation and living apart from her husband at the time of his death?"

The substance of the stipulation of facts is as follows:

"On June 19, 1919, Ray E. Stark, deceased, was employed by the Columbia River Shipbuilding Corporation as a chipper and caulker at the wage of $6.88 per day; that both employer and decedent were working under and subject to the provision of chapter 112,General Laws 1913, as amended; that on June 19, 1919, said Ray E. Stark sustained internal injuries while participating in a scuffle with a fellow workman, said injuries causing the death of said Ray E Stark on June 24, 1919; that the facts respecting said scuffle and accident are as follows:

"That the employees returned to work about 12:30 p.m. and had been working about 1 1/2 hours when the accident happened; W.T. Cooper, an employee, was working on tank 2 or 3 at the forward end; T.C. Turley was working on the aft end of the tank; Turley had started to use the air hose to blow the water off the bottom of the tank to ascertain whether or not the rivets were sweating or leaking and in this work used the open air hose without the air gun attached or fastened to it.Turley had just finished using his hose for blowing water off bottom of tank and had started to connect the air gun to the hose when Ray E. Stark took the hose from Turley and purposely pointed it towards Cooper.Cooper was about 15 or 20 feet from him.The air blew Cooper's hat and goggles off.Cooper had just finished disconnecting the air gun from his air hose and was preparing to blow the water off the bottom of the tank, when Stark blew his hat and goggles off; then Cooper turned his air hose on Stark and was blowing air around Stark's chest and arms and was walking towards Stark.When Cooper and Stark got close enough to each other, Stark grabbed Cooper's hose and Cooper grabbed the air hose of Stark; then one of the employees took the Turley hose from Stark and left Stark and Cooper holding the air hose used by Cooper.While Stark was holding the air hose he started to turn around and stumbled over a skid support block stumbling forward, and in stumbling the air hose got in such a position that the air from it was blown into his rectum, causing peritonitis which caused his death, on June 24, 1919, at 7:00 p.m. at St. Vincent's Hospital, Portland, Or.On June 21, 1919, at St. Vincent's Hospital, just prior to Ray E. Stark's death, Stark made and signed the following statement in the presence of Richard Diech, Tom Coleman, Glenn Howell, and Anna McMillan, which each of the parties to this stipulation agree is true, to wit:

"When asked with whom he was scuffling, he said: 'That is the man'(pointing to Cooper).'It was as much my fault as his; we were scuffling."At the request of Cooper, Stark was asked who started the scuffling; answered by Stark, 'I did.'

"And as a part of this stipulation relating to the first question, it is agreed that testimony will be taken and the fact found by the court, as to whether or not it was the custom of the fellow employees of the decedent to use the air hose and apparatus in scuffling and horseplay prior to the happening of this accident. * * *

"And as a part of this stipulation relating to the second question, it is agreed that testimony will be taken and the fact found by the court as to whether or not Wanda Stark left her husband, Ray E. Stark, on or about two weeks prior to June 2, 1919, with the intention of deserting him and not living with him again."

The claims were disallowed by the Accident Commission, upon the ground that the injuries were not sustained by an accident arising out of and in the course of his employment.An appeal was allowed, and the case tried before the circuit court without a jury.The trial court found that compensation should be allowed.The Accident Commission brings this appeal.

Testimony was taken upon the trial of the cause.The stipulation of facts was incorporated into the findings of fact by the trial court.The court also found:

"In addition to the stipulation on file herein, the court finds as a fact that at the works and shipyards of the Columbia River Shipbuilding Company, in Portland, Or., it was, during the latter part of 1918, and the first half of the year 1919, the custom of the employees of said company, while engaged in their work, to use the air hose and apparatus, supplied by the company for the performance of the necessary work, in scuffling, horseplay, and general recreation, during working hours."

"That prior to June, 1919, Wanda Stark, petitioner in this case, had ceased to reside with her husband, Ray E. Stark, and had left his home with the definite intention of not thereafter associating with him as his wife, but that she had not left with the intention of deserting him."

The court concluded as a matter of law:

"That the occurrence described in the stipulation was an accidental occurrence and arose out of and in the course of the employment of Ray E. Stark by the Columbia River Shipbuilding Company," and that prior to the accident, Wanda Stark, petitioner, had not deserted her husband and was not living apart from him in the sense which the terms are used in section 21, c. 112,General Laws of Oregon 1913.

J.A. Benjamin, Asst. Atty. Gen. (I.H. Van Winkle, Atty. Gen., on the brief), for appellant.

Henry S. Westbrook, of Portland, for respondent.

BEAN, J.(after stating the facts as above).

By chapter 112,General Laws of Oregon 1913, the Legislature, recognizing that the prosecution of the various industrial enterprises which must be relied upon to create and preserve the wealth and prosperity of the state, involves the injury of large numbers of workmen resulting in their partial or total incapacity or death, that under the law as it then existed an unequal burden was cast upon its citizens, that the adjudication of the responsibility of the employer on account of injuries sustained by his workmen entailed unnecessary cost divided between the workmen, the employers, and the taxpayers, that the people of the state were subjected to a heavy burden in providing for the care and support of such injured workmen and their dependents, and that this burden should be more fairly distributed, enacted the Workmen's Compensation Law contained in sections 6605 to 6659, Or.L.The act was amended by Laws of 1917, c. 288;Laws of 1919, c. 55;andLaws of 1921, c. 311.By the provisions of this act an Industrial Accident Commission was created.Its duty and authority were defined.Hazardous occupations, employers, and beneficiaries under the act were defined.By section 6614 the elective privilege of the employer is given not to accept the act, by filing with the Commission a written notice of such election.An employee may also give notice to his employer of his election not to become subject to the act.Section 6615.By section 6624, every employer engaged in the hazardous occupations enumerated in the act who shall not have served notice of his election not to contribute under the act, except as provided therein, is required to pay to the Commission each month a certain percentage of his total pay roll for the preceding month of workmen subject to this act at the rate set forth therein, as a part of the industrial accident fund.Such employers are required to retain from the earnings of each of his workmen one cent per day and pay the same to the Commission.There is also appropriated annually after June 30, 1921, by the state a sum equal to one-seventh of the total sum received under the provisions of section 6624.

The compensation is provided in section 6626, the first portion of which reads:

"If any workman while he is subject to this act and in the service of an employer who is thus bound to contribute to the industrial accident fund shall sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means, he or his beneficiaries or dependents, if the injury result in death, shall receive compensation according to the following schedule:"

Then follows a schedule of the amounts to be paid to such workman and his dependents.Section 6627 reads in part thus:

"If injury or death results to a workman from the deliberate intention of the workman himself to produce such injury or death, neither the workman nor the widow, widower, child or dependent of the workman shall receive any payment whatsoever out of the accident fund."

It is the position of the Attorney General on behalf of the State...