Swak v. Department of Labor & Industries

• Decision Date: 07 February 1952
• Docket Number: No. 31675,31675
• Court: Washington Supreme Court
• Parties: SWAK, v. DEPARTMENT OF LABOR & INDUSTRIES.

Page 51

40 Wn.2d 51

240 P.2d 560

SWAK, v. DEPARTMENT OF LABOR & INDUSTRIES.

No. 31675.

Supreme Court of Washington, Department 1.

Feb. 7, 1952.

Rehearing Denied March 13, 1952.

Smith Troy,

Francis J. Walker, Olympia, for appellant.

Walthew, Gershon, Yothers & Warner, Seattle, for respondent.

WEAVER, Justice.

May a trial court take judicial notice of judgments entered by it in prior and separate litigation between the same parties?

Respondent sustained a head injury September 9, 1928, while engaged in extrahazardous employment. He was compensated under the workmen's compensation act for time lost, but not for permanent partial disability. His claim was closed by the department December 21, 1928.

On February 18, 1946, respondent applied to have his claim reopened, on the ground that his condition had become aggravated. The supervisor denied the application. Upon petition, the joint board granted a hearing and thereafter sustained the action of the supervisor. Respondent appealed to to the superior court.

At the trial, November 24, 1950, two issues were presented to the jury: (1) whether respondent suffered any aggravation of his condition after the closing of his claim on December 21, 1928, and prior to February 18, 1946; and (b) the amount of permanent partial disability compensation, if any, to which respondent was entitled. Under appropriate instructions, the jury found that respondent's condition had become aggravated and that he was entitled under the workmen's compensation act, to one hundred per cent disability for unspecified injuries to his head. The department of labor and industries has appealed.

At the close of plaintiff's (respondent's) case, appellant's counsel challenged the sufficiency of the evidence. He requested the trial court, in ruling on the challenge, to take judicial notice of three judgments, not a part of the departmental record, which, he stated, had theretofore been entered by the same court between the parties in prior and separate litigation. The original judgments were handed to the court at the time of trial, but were not offered as exhibits. Counsel urged that these judgments, when judicially noticed, showed that respondent had previously been awarded judgment for more than the maximum amount allowable under the statute for permanent partial disability, whether accruing as the result of one accident or of more than one accident.

Appellant's first assignment of error is directed to the trial court's refusal to take judicial notice of these judgments.

The three judgments were not a part of the departmental record. They could not, therefore, be introduced on appeal to the superior court. Rem.Rev.Stat. (Sup.), § 7697-2; Strmich v. Dept. of Labor and Industries, 31 Wash.2d 598, 198 P.2d 181.

A court of this state will take judicial notice of the record in the cause presently before it or in proceedings engrafted, ancillary, or supplementary to it. State ex rel. Sander v. Jones, 20 Wash. 576, 56 P. 369 (in contempt proceedings to enforce injunction, order granting injunction noticed); Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L.R.A. 649 (on request of one defendant, judgment in favor of codefendant noticed); Flood v. Libby, 38 Wash. 366, 80 P. 533 (original judgment noticed in proceedings supplemental to execution thereon); Hale v. Crown Columbia Pulp & Paper Co., 56 Wash. 236, 105 P. 480 (in action by guardian ad litem, his appointment noticed); White v. Jansen, 81 Wash. 435, 142 P. 1140 (in action on sheriff's bond, prior order granting leave to sue noticed); Perrault v. Emporium Department Store Co., 83 Wash. 578, 145 P. 438 (on second appeal, after new trial awarded on first appeal, facts in record of first trial noticed); In re Parkes' Estate, 101 Wash. 659, 172 P. 908 (in action to establish trust and claim against decedent's estate, probate proceedings and record thereof noticed); Regenvetter v. Ball, 131 Wash. 155, 229 P. 321 (order granting new trial noticed on appeal after second trial); State ex rel. McDowall v. Superior Court, 152 Wash. 323 277 P. 850 (record in original action noticed in proceedings supplemental to execution); Cloquet v. Dept. of Labor & Industries, 154 Wash. 363, 282 P. 201 (in workmen's compensation case involving aggravation of injuries, record in prior case involving same injury noticed); In re Laack's Estate, 188 Wash. 462, 62 P.2d 1087 (prior record in proceeding to revoke letters of administration noticed, where same transaction was involved and prior record incorporated by reference); In re Guardianship of Robinson, 9 Wash.2d 525, 115 P.2d 734 (in proceeding to remove guardian, record in guardianship proceedings noticed).

In each of the cited cases, the nature of the proceeding was such that the trial or the appellate court could infer that prior proceedings had taken place in the case before it or in proceedings engrafted, ancillary, or supplementary to it. The record of those proceedings was then...