Stertz v. Industrial Ins. Com'n of Washington

• Decision Date: 20 June 1916
• Docket Number: 13388.
• Citation: 91 Wash. 588,158 P. 256
• Parties: STERTZ et al. v. INDUSTRIAL INSURANCE COMMISSION OF WASHINGTON.
• Court: Washington Supreme Court

158 P. 256

91 Wash. 588

STERTZ et al. v. INDUSTRIAL INSURANCE COMMISSION OF WASHINGTON.

No. 13388.

Supreme Court of Washington

June 20, 1916

Department 2.

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Proceedings by Louise F. Stertz and her minor children to recover compensation for the death of her husband, before the Industrial Insurance Commission. From a judgment confirming the order of the commission denying compensation, the claimants appeal. Reversed and remanded, with instructions.

T. P Fisk, of Shelton, for appellants.

W. V Tanner, John M. Wilson, and Chas. E. Arney, Jr., all of Olympia, for respondent.

BAUSMAN J.

This is a proceeding by the widow and minor children of Stertz, foreman of a logging camp, to recover through the Industrial Insurance Commission statutory compensation for death.

This foreman had suspended for misconduct a workman named Steel but had reinstated him. Steel, discharged a few days later by the president, waylaid the logging train and, wounding one, killed others of the workmen including Stertz, who was in charge of the train as foreman. Only those were assailed with whom Steel, while a workman, had had quarrels concerning his tasks. The present claimants are not shown to have collected or sought damages from Steel, but their claims were rejected both by the commission and the superior court. The sole argument now made to sustain their rulings is that the statute contemplates only 'accident' as that term is popularly understood and also as 'arising out of' the employment. These words nowhere occur in any of the definitions or granting clauses of our statute. Far stronger terms occur.

We are now brought to a point where we must explore this noble legislation with a view to some interpretation both decisive and general. Our legislators, with three systems to imitate, chose the most sweeping. There was that of England, which least interferes with employers, a liability act removing defenses but prescribing no way in which the employer must provide for the claim. There was that of Denmark and Sweden, in which the state issues policies to the employed at the master's expense. Finally, there was that of Germany, which ours most nearly resembles, and which provides both the remedies and the fund by compulsory insurance with contribution of employers collectively. Even the German scheme was somewhat exceeded; for the private parties under our law have no participation in the management, nor, during a first period of three months, does our workman contribute something toward the loss, as he did under the German.

Our act came of a great compromise between employers and employed. Both had suffered under the old system; the employers by heavy judgments of which half was opposing lawyers' booty, the workmen through the old defenses or exhaustion in wasteful litigation. Both wanted peace. The master, in exchange for limited liability, was willing to pay on some claims in future, where in the past there had been no liability at all. The servant was willing, not only to give up trial by jury, but to accept far less than he had often won in court; provided he was sure to get the small sum without having to fight for it. All agreed that the blood of the workman was the cost of production, that the industry should bear the charge.

By the working class, the new legislation was craved from a horror of lawyers and judicial trials. What they wanted, as this act expressly recites in its first section, was compensation, not only safe, but sure. To win only after litigation, to collect only after the employment of lawyers, to receive the sum only after months or years of delay, was to the comparatively indigent claimant little better than to get nothing. The workmen wanted a system entirely new. It is but fair to admit that they had become impatient with the courts of law. The knew, and both economists and progressive jurists were pointing out, what is now generally conceded, that two generations ought never to have suffered from the baleful judgments of Abinger and Shaw.

It is for us to say, not whether our workmen ought to have a statute which insures them absolutely on the master's premises, but whether they do have it. What they gave up for it is great, trial by jury and unlimited damages. The former was an undeniable advantage, the latter had often brought them fivefold what is afforded by this act, which given not to exceed $4,000 for a life and $1,500 for the loss of a limb or an eye. What laborers desired was not mere removal of the old defenses. Moreover, the English statute that had removed these had already begotten whole volumes of contests over the new words 'accident' and 'arising out of employment.' Well may ours have used unqualified words to create an undebatable recovery when the injury should occur at the place of work, which even the common law had required the master to maintain in safety.

Those who drafted our law had before them many foreign statutes during the long and careful preparation of this; so we are at once struck by the absence of many familiar terms. In some of those the right of action springs from 'accident'; in other from an injury arising 'during and in the course of employment.' The English statute is 'personal injury by accident arising out of and in the course of employment.' Simple as these terms appear, they have filled volumes with discussion. Not one of them appears in any of the enabling or granting provisions of our law. Wherever a right is conferred or definition given, ours is unqualified. Indeed, our statute is in these features the least qualified that can be found. The intention to get rid of judicial controversies is apparent throughout. We have already recognized that intention.

'* * * Aside from its humane purpose, it was adopted in order that the delay and frequent injustice incident to civil trials might be avoided.' Chadwick, J., in State v. Mountain Timber Co., 75 Wash. 581, 583, 135 P. 645, 646.

Having seen what was not inserted, let us see what was. Let us examine definitions carefully made. The first section, after stating that industrial relations in all hazardous employments are matter for police regulation, that injuries are frequent and inevitable and that controversies about them are wasteful, declares that:

'All phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.' (Laws 1911, c. 74.) The third section, that of definitions, defines 'workman':

'Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in section 4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer.'

We shall quote later a proviso appended to this definition and relating to injuries from third persons.

'Dependent' was defined as certain 'relatives of a workman whose death results from any injury and who leaves surviving,' etc.

The fifth section, the granting clause of compensation, is as follows:

'Each workman who shall be injured whether upon the premises or at the plant or he being in the course of his employment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.'

Obviously and clearly, the qualifying 'in the course of employment' does not apply to 'on the premises.' Had that been intended, the arrangement was natural and easy. Thus, 'When the workman is injured in the course of his employment either upon the premises or away from the plant.' Surely we must assume a reason for the other peculiar order. Nor did that order come of chance. It is precisely repeated, we have just seen, in the definition of 'workman.' Even the punctuation is most carefully repeated there.

'Injury,' too, was given a definition:

'The words injury or injured, as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease.'

In this last we notice, first, not merely the avoidance of 'accident,' but of 'arising out of the employment,' the use of which this definition fairly invited if that were to be meant; second, exclusion by enumeration. Disease is excluded; everything else is included. Lastly 'fortuitous event,' the strongest term that could be used, no popular expression, but one used by lawyers for positive strength, a term in truth that is selected when one wishes all of 'accident' and more. Black thus defines it:

'There is a difference between a fortuitous event, or inevitable accident, and irresistible force. By the former, commonly called the 'act of God,' is meant any accident produced by physical causes which are irresistible; such as a loss by lightning or storms, by the perils of the seas, by inundations and earthquakes, or by sudden death or illness. By the latter is meant such an interposition of human agency as is, from its nature and power,

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