Windust v. Department of Labor and Industries

• Decision Date: 20 March 1958
• Docket Number: No. 33918,33918
• Citation: 323 P.2d 241,52 Wn.2d 33
• Court: Washington Supreme Court
• Parties: Alma M. WINDUST, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, and Glacier Sand & Gravel Company, Respondents.

Page 33

52 Wn.2d 33

323 P.2d 241

Alma M. WINDUST, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES of the State of Washington, and Glacier Sand & Gravel Company, Respondents.

No. 33918.

Supreme Court of Washington, En Banc.

March 20, 1958.

Rehearing Denied June 9, 1958.

Chester A. Lesh, Seattle, E. L. Casey, Walla Walla, for appellant.

Don Eastvold, former Atty. Gen., John J. O'Connell, Atty. Gen., John C. Martin, Seattle, Seth W. Morrison (of Allen, De-Garmo & Leedy), Seattle, for respondents.

MALLERY, Justice.

Aubra H. Windust died on March 29, 1954, at the age of sixty-one years, while working for the Glacier Sand and Gravel Company as an operator of a ready-mix concrete truck.

On April 28, 1954, his widow filed a claim for a pension with the department of labor and industries, which the supervisor rejected upon the ground that there was no injury within the contemplation of the workmen's compensation act. The board of industrial insurance appeals sustained the supervisor's order, and claimant appealed to the superior court. From its judgment of dismissal, she appeals to this court.

As a driver of the ready-mix concrete truck, one of the workman's customary duties was to walk out on the catwalk on the side of the truck, step up about two feet and look into the drum to see how much concrete was in it. He fell dead, on the day in question, just as he was stepping up to look into the drum. Appellant contends this act incident to his employment constituted an injury under the workmen's compensation act. It is not denied that the workman had been looking into the drum to ascertain the amount of remaining concrete, whenever his duties required it, for approximately ten years.

The workman's death was due to a myocardial infarction involving the interventricular septum caused by fatty deposits on the inside of the heart arteries, known as arteriosclerosis, which so narrowed them that not enough blood could pass through to supply the heart muscle. Dr. Sloan's testimony followed the customary pattern that, if the workman had not engaged in his work but had been receiving proper medical treatment at the time he looked into the drum, he would not have died.

This satisfied the rule of McCormick Lumber Co. v. Department of Labor and Industries, 7 Wash.2d 40, 108 P.2d 807, 815, which is:

'* * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health.'

This formula justifies holding that the recurring duties of a job and acts incident thereto constitute injuries, whenever a workman's heart ailment has progressed to the point where a restriction of activities is essential to his survival.

The rule of the McCormick case has represented for many years the decisional weight of authority in this state. If the doctrine of stare decisis is applicable to cases which interpret a statute, we are not now free to depart from that rule, notwithstanding its obvious conflict with the statute.

The statute in question is RCW 51.08.100 [cf. Rem.Rev.Stat. (Sup.), § 7675; Rem.Supp.1941, § 7679-1]. It provides:

"Injury' means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without; an occupational disease; and such physical condition as results from either.'

This situation, in which the statute is amended or repealed by a court-made rule, warrants an examination of the doctrine of stare decisis and the proper occasion for its application. This is its definition in Webster's New International Dictionary (2d Ed.) 'Literally, to stand by decided matters; * * * as implying the doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice. This principle had an important part in the development of the English common law.'

Indeed, the common law is comprised of that body of court decisions in the nonstatutory field to which the doctrine of stare decisis applies. The rule of law of those cases was promulgated by the courts for the inescapable reason that pending litigation had to be disposed of, even though there was no legislative enactment that governed the issue therein. Uniform and equal justice naturally required subsequent adherence to such decisions in the absence of pertinent legislation. In the sense that the promulgation of a rule of law is legislation, the courts can and do properly legislate in nonstatutory fields. Every case governed by stare decisis, rather than statute law, is a proper occasion for judicial legislation. However, the courts may only so legislate in fields left vacant by the legislature. A legislative enactment, intended to be comprehensive upon a subject, pre-empts that field, with the result that the court's constitutional function with regard to it is thereafter limited to an interpretation of what the legislature meant by the language used in the statute.

The application of the doctrine of stare decisis is, of course, not the same thing as the interpretation of a statute. The distinction was made clear in Petersen v. Department of Labor and Industries, 40 Wash.2d 635, 245 P.2d 1161, 1162, wherein we said:

'Cases involving statutory interpretation require that we restrict ourselves to a determination of the meaning of the statutory language in question. In this they differ from cases concerned with rules of the common law wherein wisdom and practicality, in the light of human experience, inhere in the judicial process.

'Statutory cases have a fixed base from which we always start. Thus, they are unlike common-law cases wherein the later cases supersede the earlier ones to the extent of any differences between them.'

The cumulative effect of many slight deviations is demonstrated by the rule of Ashford v. Reese, 132 Wash. 649, 233 P. 29, which, in 1925, held that a vendee under an executory contract to purchase real property, acquired no title or interest, legal or equitable, in it. It has never been overruled, yet, in a series of subsequent cases, it has been whittled away until nothing remains. 32 Wash.L.Rev. 130. Each case revamped the law a little in order to do justice on its particular facts. It is the cumulative effect of these little deviations that produced the final result.

The application of the doctrine of stare decisis to the interpretation of a statute will, more often than not, lead to the eventual repeal or amendment of the statute, just as it has in the instant case.

When Chief Justice Hughes said the law is what the supreme court says it is, he meant, with regard to statute law, that the function of interpreting a statute belongs to the supreme court. Interpretation of the meaning of a statute ends where the amendment or repeal of it begins.

The court repeal of a statute by the application of the doctrine of stare decisis, makes it pertinent to look at the function of the court. Under our constitution there is a limit to the application of the doctrine of stare decisis. That limitation inheres in our checks and balance form of constitutional democracy, which vests the legislative power in the legislature and the people, subject only to certain constitutional prohibitions and limitations.

Of course, it is the duty of the court to invalidate a statute if it contravenes the constitution. Such a holding has as its purpose the implementation of the supremacy of the constitution. For the court to repeal a statute for no other reason than that it conflicts with the doctrine of stare decisis, is an obvious encroachment upon the legislative branch of the government. Unfortunately, the checks and balance system of our constitution is implemented, as to the manner in which the courts shall function, only by our discriminative self-restraint. Its exercise alone will avoid arbitrary judicial invasion of the other departments of government.

The gravity of substantial judicial encroachment upon the legislature, under the guise of following the doctrine of stare decisis, warrants a reference to the admonition in Petersen v. Department of Labor and Industries, supra, that 'Statutory cases have a fixed base from which we always start.' It may be added that only the statute contains the authoritative language in which the law is couched. A constant paraphrasing of the statutes by the court, such as is done in the McCormick case, initiates the process exemplified in Ashford v. Reese, supra, by which an accumulation of small changes overrules the law. By that process, more and more weight is inevitably given to opinions and less and less to the statute until, as in the McCormick case, the law is all opinion and no statute.

Since the doctrine of stare decisis is not applicable to a case of statutory interpretation, we advert directly to the language of the statute to ascertain if there has been an injury in the instant case.

"Injury' means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without; * * *' (Italics ours.) RCW 51.08.100, supra.

We are constrained to hold that the routine act of ten years' standing is not an injury as a matter of law. Interpreting this particular and exact language of the statute in Mork v. Department of Labor and Industries, 48 Wash.2d 74, 291 P.2d 650, 652, we said:

'The act of the deceased in returning to his station is not an industrial accident. As we said in Higgins v. Department of Labor and Industries, 27 Wash.2d 816, 180 P.2d 559, 564:

"There is no sudden and tangible happening in the present case, no matter of notoriety, nor an event which can be fixed in time, but rather an incapacity due to the relatively slow and insidious inroads of a progressive and apparently incurable disease."

In Haerling v. Department of Labor and Industries, 49 Wash.2d 403, 301 P.2d...