Sumerlin v. Department of Labor and Industries

• Decision Date: 17 March 1941
• Docket Number: 28118.
• Citation: 111 P.2d 603,8 Wn.2d 43
• Parties: SUMERLIN v. DEPARTMENT OF LABOR AND INDUSTRIES et al.
• Court: Washington Supreme Court

111 P.2d 603

8 Wn.2d 43

SUMERLIN v. DEPARTMENT OF LABOR AND INDUSTRIES et al.

No. 28118.

Supreme Court of Washington

March 17, 1941

Department 2.

Proceeding under the Workmen's Compensation Act by Agnes Sumerlin plaintiff, opposed by the Ozette Railway Company, employer for the death of William Sumerlin. From a judgment on a verdict reversing a decision affirming an order of the supervisor rejecting the claim, the employer appeals.

Affirmed.

Appeal from Superior Court, Grays Harbor County; William E Campbell, judge.

L. B. Donley, of Aberdeen, for appellant.

Smith Troy and T. H. Little, both of Olympia, for defendant.

Harry Ellsworth Foster, of Olympia, and A. D. Gillies, of Aberdeen, for respondent.

JEFFERS Justice.

This is an appeal by the Ozette Railway Company, a corporation, employer and intervener, from a judgment made and entered in the above entitled proceeding, June 7, 1940, after a jury verdict in favor of plaintiff and respondent had been received and entered, and after motions for new trial and for judgment notwithstanding the verdict had been made by intervener and denied by the court.

The judgment entered reversed a decision of the joint board of the department of labor and industries, hereinafter referred to as the department, dated April 17, 1939, affirming an order of the supervisor rejecting respondent's claim, and remanded the cause to the department, with instructions to allow respondent's claim for the death of her husband, and to pay the compensation allowed by law.

William Sumerlin, husband of respondent, died on July 23, 1936, while in the employ of appellant as a timber faller. On August 6, 1936, respondent filed a claim for pension as the widow of the deceased, and on October 22, 1936, the supervisor of industrial insurance rejected the claim, for the reason that there was no proof of an injury to William Sumerlin during the course of employment, and his death was not the result of trauma, but of a pre-existing disease.

On November 4, 1936, respondent filed a petition for rehearing Before the joint board, which was granted November 23, 1936, and thereafter, on May 26, 1937, and on various other dates up to and including March 21, 1939, to which date the hearing was continued, testimony was taken as hereinafter set forth.

The testimony of the following lay witnesses was offered by respondent: Mrs. Agnes Sumerlin, W. A. Thompson, Guy Sansom, George H. Northup, Dale Northup, Sr., Marvin Carter, Len Forrest, Herbert Hulten, and Earl C. Sansom, or Lee Sansom, as he was called.

Mrs. Sumerlin testified that she and Mr. Sumerlin were married in 1917, and had one son eighteen years of age; that at the time of his death, her husband was a timber faller, in the employ of appellant; that Mr. Sumerlin was forty-eight years of age, had always been a strong, robust man, and had never had a doctor; that deceased was very active, and had always done hard work; that her husband had worked for the Bloedel-Donovan Company as a faller for about a year Before going to work for appellant, and had been working for appellant about two weeks.

W. A. Thompson testified that deceased was a strong, able-bodied man; that the witness, with Lee Sansom and Dale Northup, went out to the place where Mr. Sumerlin was working at the time of his death, and Dale took some pictures (marked as claimant's exhibits A, B, C and D); that the pictures show the stump of the tree on which deceased last worked and the conditions immediately adjacent to the stump.

Dale Northup testified to taking the pictures above referred to.

Mrs. Sumerlin, W. A. Thompson, Guy Sansom, George Northup and Dale Northup, each related a conversation they had with Lee Sansom, who was working with Mr. Sumerlin the day of his death, in which Mr. Sansom told them what happened just prior to Mr. Sumerlin's death, particularly what deceased did and how he acted. Objection was made to the admission of this testimony at the time it was given Before the examiner, and the trial court sustained the objection, on the ground that it was hearsay. Guy Sansom was permitted to testify to the customary method which a timber faller used in getting down from a spring board. The witness stated that he either jumped down or swung down, depending upon the formation of the ground, and a lot of different things.

Marvin Carter, who was called by both respondent and appellant, testified that he was a scaler for Polson Logging Company, and knew deceased; that on July 23rd he was checking and scaling for appellant close to where Mr. Sumerlin was working; that deceased and Lee Sansom had cut timber that day that scaled 46,000 feet; that the last tree worked on by deceased measured five feet ten inches in diameter; that after this tree was felled, the witness went over to mark and scale it, which probably took him fifteen or twenty minutes; that after having finished his work on the tree, and having been told by Sansom that Sumerlin was feeling sick, he went up to where Sumerlin was, which was four or five hundred feet from where the tree had been cut, and asked Sumerlin how he felt, to which the latter replied that he was feeling better; that he did not again see Sumerlin alive; that it was probably forty-five minutes or so after the tree fell Before Sumerlin died.

The witness further testified that the wind was not blowing that day; that wedges were not used in falling this tree; that there were no long splinters in the stump, and that it was not a hard tree to fall; that Sansom and Sumerlin were good fallers, but that they were taking it easy.

Len Forrest, safety engineer for appellant, who was also called both by respondent and appellant, testified that he took a statement from Lee Sansom on July 28, 1936. This statement was signed by Sansom, and is a part of the records of the department.

Herbert Hulten testified he was working for Polson Logging Company on July 23, 1936, near where Sumerlin was working; that they ate their lunch together that day, and he did not notice anything wrong with Sumerlin at that time; that he saw Sumerlin again about quitting time at the same place, and Sumerlin looked pale; that he asked Sumerlin what the trouble was, and Sumerlin answered that 'he was feeling kind of warm,' and that 'he would be alright in a few minutes as soon as he got cooled off a little.'

We now come to the testimony of Earl C. Sansom, known as Lee Sansom, which was taken at a continued hearing held on March 19, 1938, at the United States veterans hospital at American Lake. Prior to the taking of Sansom's testimony, objection thereto was made by appellant, on the ground that Sansom was incompetent to testify. Letters of guardianship were introduced, which show that on June 16, 1937, on the application of People's Bank & Trust Company, that institution was appointed guardian of Earl C. Sansom, incompetent. No other part of the guardianship proceedings was introduced in evidence, so it does not appear, other than as above indicated, for what purpose or on what ground a guardian was appointed. Prior to the taking of Sansom's testimony, the department called Doctor John D. Morgan, who testified that he was a physician and surgeon, and the attending physician at the veterans hospital, at American Lake, and had under his care Earl C. Sansom; that Mr. Sansom had a mental ailment which caused him to be incompetent at that time and socially inadaptable to be outside the hospital. The doctor further testified that in his opinion Mr. Sansom was not competent to testify to facts which had occurred in the past two or three years, and that from present appearances, Sansom probably would never be competent to testify.

Earl C. Sansom was then called, and after being sworn, testified as follows:

'Q. Give your name? A. Earl C. Sansom.

'Q. You are commonly called Lee Sansom? A. E. L. Sansom.

'Q. You know Bill Thompson here? A. I am acquainted with Bill Thompson.

'Q. And Mrs. Sumerlin? A. I am acquainted with Mrs. Sumerlin.

'Q. Did you work with Archie Sumerlin in 1936? A. Archie and I have been acquainted for a long time.

'Q. Did you fall timber with him? A. Yes.

'Q. For what company did you work last with Archie Sumerlin? A. We were working for the Polson Lumber Company.'

It may be stated here that while it is not clear just what relation existed between the Ozette Railway Company and Polson Logging Company, apparently the railway company was owned and controlled by the logging company, and because of this fact the names are used interchangeably by some of the witnesses throughout this record.

The testimony of Mr. Sansom continues:

'Q. How long did you work with him the last time? A. I think we were working together a couple of weeks.

'Q. Do you remember the day Archie Sumerlin died? A. Well I remember that.

'Q. You were working with him then, were you? A. I was, yes, at that time.

'I been acquainted with him ever since.

'Q. Prior to that day, Lee, what would you say as to Mr. Sumerlin keeping up his end of the work? Did he always do his work? A. He always did his work.

'Q. Was he a good timber faller? A. Yes. * * *

'Q. Mr. Sansom, will you tell us in your own way what happened on the day of Mr. Sansom's [Sumerlin undoubtedly meant] death? A. Well he was all right. He was healthy apparently in every way.

'Q. How many trees did you fall that day? A. We were working in large timber and I think we fell two trees that day, two or three--I would not know for sure to be exact--I would say two.

'Q. Do you know whether it was spruce or fir that you were working on at the last? A. The last tree we were working on was spruce.

'Q. Do you remember whether you wedged the tree over? A. No the wind was blowing that day.

'Q. Just Before the tree...