Tonkovich v. Department of Labor and Industries of State, 30576.

• Decision Date: 22 July 1948
• Docket Number: 30576.
• Citation: 31 Wn.2d 220,195 P.2d 638
• Court: Washington Supreme Court
• Parties: TONKOVICH v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE.

195 P.2d 638

31 Wn.2d 220

TONKOVICH v. DEPARTMENT OF LABOR & INDUSTRIES OF STATE.

No. 30576.

Supreme Court of Washington

July 22, 1948

Department 1

Rehearing Denied Sept. 13, 1948.

Proceeding under the Workmen's Compensation Act by Mike Tonkovich claimant, to reopen a claim because of an aggravation of original injury opposed by the Department of Labor &amp Industries of the State of Washington. Action of the supervisor denying claimant's application was sustained on rehearing by the joint board and claimant appealed to the superior court. From the judgment, claimant appeals.

Judgment affirmed.

Appeal from Superior Court, Snohomish County Charles R. Denney, Judge.

Walthew & Gershon, of Seattle, for appellant.

Smith Troy and Theodore M. Ryan, both of Olympia, for respondent.

SIMPSON Justice.

Claimant sustained injury October 29, 1935, while engaged in extrahazardous employment. The accident occurred while he was laying steel on a bridge. He fell and fractured two bones in his right foot. The department of labor and industries recognized claimant's right to compensation, and paid him time loss for six months and twenty-seven days, and a lump sum for permanent partial disability. July 27, 1945, claimant filed an application to reopen his claim because of an aggravation of condition. A medical examination was had and the application was denied by the supervisor. On rehearing by the joint board, the action of the supervisor was sustained. Claimant then took an appeal to the superior court. Special interrogatories were submitted to the jury, and a verdict was rendered in favor of the claimant.

Claimant's request for additional compensation was based upon his contention that the injury had caused an arthritic condition of his spine, and that his abdomen had become diseased by the formation of carcinoma (cancer) which necessitated the removal of a segment of the large intestine, and the wearing of a colostomy bag.

Answering special interrogatories, the jury found that plaintiff suffered an aggravation of his original injury, and that the aggravation or condition of his abdomen and bowel was caused by the injury, but that the arthritic condition was not due to any aggravation of his original disability.

Immediately after the verdict was rendered in favor of claimant, respondent moved for a judgment notwithstanding the verdict. The court granted the motion, and dismissed the action. The claimant then presented this appeal.

Appellant makes the following assignments of error:

'1. The trial court erred in setting aside a jury's verdict in favor of appellant based on submitted instructions, and dismissing the action, in the absence of any objection on the part of the respondent to any testimony or any challenge to the sufficiency of the evidence or any exception to any of the instructions.

'2. The trial court erred in holding that there was no evidence in the record upon which the jury's verdict could stand.'

The evidence given by appellant Before the joint board was to the effect that he had not worked for any one since March, 1942, at which time he underwent a stomach operation. Prior to the accident, he said, his stomach was in good condition, but immediately after, he commenced to be troubled with constipation.

Dr. Sol Levinson testified that he examined appellant on or about May 26, 1946, and took a complete history of the case. He found that appellant's disability in his abdomen probably could be due to the original injury, but that it would be difficult to say just exactly what caused such a condition.

Claimant then called Dr. Norwood Clayton Riddle, his physician at the time of his injury, who testified that claimant's cancerous condition could not be attributed to the accident.

Respondent introduced the testimony of Dr. I. O. McLemore who stated that he could not see any connection between the abdominal condition and the original injury.

During the trial, respondent did not object to the introduction of any of the testimony, nor did it except to any of the instructions given by the court. These instructions were the usual ones given in workmen's compensation cases. The most important instruction was No. 27, which reads in part as follows: 'The question for your determination is whether or not plaintiff's condition due to his accident on October 29, 1935 has become aggravated since June, 1936 and Before July 27, 1945, and if so, to what extent. If you find that plaintiff has established by a fair preponderance of the evidence that plaintiff's condition has become aggravated since June 1, 1936 and Before July 27, 1945 and that such condition was proximately caused by the accident of October 29, 1935, then you will so find by your verdict. If you believe from the evidence that plaintiff has not established aggravation by a fair preponderance of the evidence, between said dates as a result of the accident of October 29, 1935, you will so find by your verdict. If you find that plaintiff has suffered aggravation as heretofore mentioned, it will then be necessary for you to find the extent of such aggravation. * * *'

Appellant's first contention is that the failure on the part of respondent to except to instructions precludes its right to object to a verdict which followed the instructions, this under the theory that the instructions became the law of the case and could not be questioned. However, it should be remembered that we are not considering a challenge, to the law, but to the sufficiency of the evidence presented by the motion for judgment notwithstanding the verdict. The following language in Kieburtz v. City of Seattle, 84 Wash. 196, 146 [31 Wn.2d 224] P. 400, 406, indicates the decision that we should make upon the present question:

'But it is said that the question whether or not this change in the work was a material or immaterial change was submitted to the jury as a question of fact without objection on the part of the contractors or claim on their part that it should be determined as a question of law, and that, since the jury returned a verdict against them on the question, they are now estopped from claiming that they are entitled to a judgment for the omitted work, as matter of law. But we think our holdings have been heretofore contrary to this contention. In Roe v. Standard Furniture Co., 41 Wash. 546, 83 P. 1109, we said that: 'It is the proper practice for a trial court, upon the hearing of a motion for judgment non obstante veredicto, to enter final judgment in favor of either party, where it is warranted by undisputed evidence.' We held to the same effect in the subsequent cases of Fishburne v. Robinson, 49 Wash. 271, 95 P. 80, and Spokane Grain Co. v. Great Northern Express Co., 55 Wash. 545, 104 P. 794, and discussed the limitations upon the practice in Wagner v. Northern Life Ins. Co., 75 Wash. 106, 134 P. 685; Brown v. Walla Walla, 76 Wash. 670, 136 P. 1166; and Auwarter v. Kroll, 79 Wash. 179, 140 P. 326. It is true that in each of these cases, with the possible exception of the case of Fishburne v. Robinson, a motion for a directed verdict or a challenge to the sufficiency of the evidence had been interposed prior to the submission of the cause to the jury, but we cannot think the rule affected by this circumstance.

'If a judgment non obstante veredicto may be entered at all by a trial court, no substantial reason exists why it should be preceded by a preliminary challenge. In many if not in a majority of instances, it is the better practice for ...