Strmich v. Department of Labor and Industries

• Decision Date: 08 October 1948
• Docket Number: 30535.
• Citation: 198 P.2d 181,31 Wn.2d 598
• Parties: STRMICH v. DEPARTMENT OF LABOR AND INDUSTRIES (NETTLETON TIMBER CO., Intervener).
• Court: Washington Supreme Court

198 P.2d 181

31 Wn.2d 598

STRMICH v. DEPARTMENT OF LABOR AND INDUSTRIES (NETTLETON TIMBER CO., Intervener).

No. 30535.

Supreme Court of Washington, En Banc.

October 8, 1948

Proceedings under the Workmen's Compensation Act by Andrew Strmich claimant, to reopen a claim because of an aggravation of original injury, opposed by the Department of Labor and Industries of the State of Washington, wherein Nettleton Timber Company intervened. From judgment for defendant claimant appeals.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, King County; James B Kinne, judge.

Walthew & Gershon, of Seattle, for appellant.

Smith Troy and Theodore M. Ryan, both of Olympia, for Department of Labor & Industries.

Wright, Innis, Simon & Todd, of Seattle, for intervener-respondent.

HILL Justice.

The appellant sustained a back injury on March 2, 1942, while working at the intervener-respondent's mill. His claim was closed July 30, 1942, with time loss and an award of four hundred eighty dollars for a permanent partial disability. On December 15, 1942, appellant applied for a reopening of his claim, which was denied by the department of labor and industries. That denial was appealed to the superior court and, after a trial there, a jury determined (directed verdict) that there had been no aggravation between July 30, 1942, and December 15, 1942. No appeal was taken from the judgment of dismissal which was entered upon that verdict on October 13, 1945.

A second application for reopening the claim alleging an aggravation was dated December 17, 1945, and was accompanied by a statement by Dr. James Y. Phillips dated February 14, 1946. This application for reopening was received by the department on February 19, 1946. The supervisor of industrial insurance, finding no conclusive showing of aggravation, refused to reopen the claim; and, after a hearing Before the joint board of the department, the action of the supervisor was sustained. An appeal to the superior court for King county was filed on March 24, 1947, and the certified record from the joint board was filed in the cause on June 28, 1947. After a note for the trial docket and a demand for a jury trial had been filed, but Before a trial date had been set, the intervener filed a motion to dismiss the superior court action on the record. After an examination of the record, the trial court granted the motion and dismissed the action. This appeal followed.

The appellant, with commendable brevity and clarity, states the questions involved:

'1. In an appeal from the decision of the Department of Labor and Industries, is it proper to pass upon a motion to dismiss on the record, in advance of the case being called for trial, in the absence of any stipulation that the departmental record may be considered in ruling upon such motion?'

'2. Even assuming the Superior Court passing upon the motion to dismiss on the record had a right to consider a departmental record not yet read into evidence, did the instant record contain sufficient evidence to create a question for the jury upon an issue of aggravation?'

The first question is a novel one so far as this court is concerned. In Kralevich v. Department of Labor & Industries, 23 Wash.2d 640, 161 P.2d 661, the superior court's dismissal on such a motion was upheld, but an agreement between the parties had invited the ruling by the trial court; and there is no such agreement in the present case.

It is within the province of a trial court to direct a dismissal where a want of sufficiency in the evidence is apparent after that part of the record on which the claimant predicates an appeal from the joint board has been read Before the jury. Alfredson v. Department of Labor & Industries, 5 Wash.2d 648, 105 P.2d 37; Larson v. Department of Labor & Industries, 24 Wash.2d 461, 166 P.2d 159.

A nonsuit or dismissal may be directed by the trial court when the opening statements of counsel expressly admit that the facts stated are the only facts which the party expects or intends to prove, and those facts clearly show that there is no cause of action. Redding v. Puget Sound Iron & Steel Works, 36 Wash. 642, 79 P. 308; Frisell v. Surry, 99 Wash. 201, 169 P. 317; Carter v. King County, 120 Wash. 536, 208 P. 5; Charada Inv. Co. v. Trinity Universal Ins. Co., 188 Wash. 325, 62 P.2d 722; Hayden v. Foss, 188 Wash. 546, 62 P.2d 1344; see 83 A.L.R. 221, annotation. The reason for the rule is that it would be a waste of time to hear evidence which could not benefit the party offering it, and the continuation of litigation would be idle since, in law, the plaintiff has no cause of action.

The only evidence which could be introduced in the trial court was the record of the proceedings Before the joint board. Rem.Rev.Stat.(Sup.) § 7697-2; Boeing Aircraft Co. v. Department of Labor & Industries, 22 Wash.2d 423, 156 P.2d 640. If, by reason of the fact that there was not sufficient evidence to take the case to the jury, a dismissal must necessarily follow after the record has been read to the jury, it should be proper for the trial court to determine whether there is sufficient evidence for that purpose upon a motion to dismiss on the record; and the right of the trial court in this case to pass upon the motion must be sustained. We are endeavoring by pre-trial procedure and in divers other ways to expedite litigation and avoid the law's delays. It would entail needless delay and expense to hold that a jury must be impaneled and an opening statement made, or the record in such a case read to the jury, Before the trial court could pass upon a question which could be determined at any time after the filing in the cause of the certified record of the proceedings Before the joint board.

We pass now to the second question posed by the appellant. Under our repeated holdings, appellant's subjective symptoms were not sufficient to establish that there had been an aggravation of his disability, attributable to the original injury, between December 15, 1942, the date as to which it had been determined there was no aggravation, and the date of the second petition for reopening because of aggravation. Stevich v. Department of Labor & Industries, 182 Wash. 401, 47 P.2d 32; Kralevich v. Department of Labor & Industries, supra; Karlson v. Department of Labor & Industries, 26 Wash.2d 310, 173 P.2d 1001.

The facts that there had been aggravation between those dates and that the aggravation was attributable to the original injury must be established by expert medical testimony. Knowles v. Department of Labor & Industries, 28 Wash.2d 970, 184 P.2d 591; Weinheimer v. Department of Labor & Industries, 8 Wash.2d 14, 111 P.2d 221. In the case last cited, it was said, 'In cases of this kind, the actual facts must be determined from the testimony of the medical witnesses.' See, also, Tonkovich v. Department of Labor & Industries, Wash., 195 P.2d 638, and cases there cited.

Two doctors called by the department testified positively that there had been no aggravation of appellant's condition attributable to his injury on March 2, 1942, between their examinations made on January 6, 1943, in connection with his former petition for reopening, and their examinations made on April 26, 1946, in connection with the present petition for reopening.

The only other doctor to testify was Dr. James Y....