Yeck v. Department of Labor and Industries

Citation176 P.2d 359,27 Wn.2d 92
Decision Date10 January 1947
Docket Number29966.
PartiesYECK v. DEPARTMENT OF LABOR AND INDUSTRIES.
CourtWashington Supreme Court

Department 2

Proceeding under the Workmen's Compensation Law by Annie L. Yeck claimant, who appealed from a ruling of the Department of Labor and Industries of the State of Washington to the Superior Court. From a judgment of the superior court directing the Department of Labor and Industries to pay the claimant a widow's pension and awards in amounts fixed by Rem.Rev.Stat. § 7679, prior to the amendment which went into effect on December 3, 1942, the claimant appeals.

Affirmed.

Appeal from Superior Court, Pierce County; E. F. Freeman, judge.

J Peter P. Healy, of Tacoma, for appellant.

Smith Troy, Phil H. Gallagher and Lucile Loman, all of Olympia, for respondent.

CONNELLY Justice.

Plaintiff's husband was injured on November 12, 1942, while engaged in an extrahazardous occupation. He died on December 4, 1942. Laws of 1941, chapter 209, p. 624, § 1 (Rem.Supp.1941, § 7679), went into effect on December 3 1942. This act relates to the schedule of awards to be allowed as industrial compensation and has particular reference under our present inquiry to the awards allowable to widows of deceased workmen killed in extrahazardous employment. After the enactment of this law, which was an amendment to the workmen's compensation act, a petition for referendum was filed and the act went to a vote of the people. This accounts for the lateness of the date of its going into effect following its enactment by the legislature in 1941.

The schedule of awards in effect on November 12, 1942 (Rem.Rev.Stat. § 7679), when plaintiff's husband was injured, contained the following provision with reference to widows' industrial pensions: '* * * (1) If the workman leaves a widow or invalid widower, a monthly payment of thirty-five dollars ($35.00) shall be made throughout the life of the surviving spouse, to cease at the end of the month in which remarriage shall occur, and the surviving spouse shall also receive per month for each child of the deceased under the age of sixteen years at the time any monthly payment is due the following payments: For the youngest or only child twelve dollars and fifty cents ($12.50), for the next or second youngest child seven dollars and fifty cents ($7.50), and for each additional child five dollars ($5.00): Provided, That in addition to the monthly payments above provided for, a surviving widow of any such deceased workman shall be forthwith paid the sum of two hundred and fifty dollars ($250.00).'

The applicable portion of the later act (Rem.Supp.1941, § 7679), which plaintiff contends applies to her claim, is as follows: '* * * (1) If the workman leaves a widow or invalid widower, a monthly payment of fifty dollars ($50) shall be made throughout the life of the surviving spouse, to cease at the end of the month in which remarriage shall occur, and the surviving spouse shall also receive per month for each child of the deceased under the age of eighteen years at the time any monthly payment is due the following payments: For the youngest or only child fifteen dollars ($15), for the next or second youngest child ten dollars ($10), and for each additional child seven dollars and fifty cents ($7.50): Provided, That in addition to the monthly payments above provided for, a surviving widow of any such deceased workman shall be forthwith paid the sum of two hundred and fifty dollars ($250).'

The joint board of the department of labor and industries held that plaintiff's claim was covered by the earlier act and not by the later amendment. She appealed from this ruling to the superior court of Pierce county. Notices of appeal and various other processes and papers in the case were served by plaintiff's counsel upon an employee of the department of labor and industries. None were ever served upon the attorney general of the state of Washington, although a notice appears in the files of the clerk of the superior court for Pierce county, signed by the attorney general, requesting that all processes in the case be served upon him. Plaintiff's counsel states that he had no knowledge of the filing of this notice and had never been served with a copy of it.

The case was noted for trial in the superior court of Pierce county and the trial judge directed plaintiff's counsel to notify the defendant department of the date of hearing. He did so by notifying the department of labor and industries but not the attorney general. Through some inadvertence, mistake, oversight or carelessness on the part of employees in the department of labor and industries and in the office of the attorney general, no proper notice of the date of trial was brought to the attention of the assistant attorney general in charge of the case and he, accordingly, did not appear in court on the date. Thereupon, plaintiff's counsel moved for an order of default and judgment upon the order, which were granted, and judgment was entered in accordance with the terms of the later statute relating to the schedule of widows' pensions under the workmen's compensation act.

Thereafter, plaintiff caused to be issued a citation to the director of the department of labor and industries requiring him to show cause why the judgment which had been entered by default was not complied with. Thereupon, the attorney general appeared in the action and moved to set aside the default, supporting such motion with an affidavit averring that the department of labor and industries had a complete legal defense to the claim of plaintiff in that the statute under which the awards set forth in the default judgment had been computed did not apply to plaintiff's case, but that the earlier statute, carrying a schedule of lesser awards, did apply.

The trial court, following argument, granted the motion to vacate the order of default and judgment entered thereon and reinstated the case for hearing upon the merits. Following hearing, the court entered judgment requiring the department of labor and industries to pay to plaintiff a widow's pension and awards in amounts fixed by the earlier statute quoted herein. From this judgment plaintiff has appealed.

This court has long adhered to the rule that the matter of setting aside default judgments is discretionary with the trial judge and that we will not interfere with the exercise of this discretion unless a manifest abuse thereof is made to appear. It will be recalled that in this case a full hearing was had upon the merits in the court below, following that court's vacating of the default judgment. This presents a different situation than if the trial judge had denied the party in default opportunity to present the case on its merits. We so held in Jacobsen v. Definance Lumber Co., 142 Wash. 642, 253 P. 1088, 1089, wherein we said:

'The reason for the failure to appear is of far less importance than the fact that the default, if allowed to stand, will work an injustice. The purpose of the courts, whether their judgments be entered by default or after a trial, is always to do justice as nearly as may be, and no technical failure to appear in time, if that failure be not willful, would justify a court in permitting to stand a judgment which he is satisfied is unjust. We do not mean by what is now said that the rules may be disregarded with impunity, far from it. The courts will seldom relieve one who has willfully disregarded the command of a summons duly served, and always the burden is on the party seeking the
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34 cases
  • Little v. King
    • United States
    • Washington Supreme Court
    • June 21, 2007
    ...¶ 14 We review a trial court's decision on a motion to set aside a default judgment for abuse of discretion. Yeck v. Dep't of Labor & Indus., 27 Wash.2d 92, 95, 176 P.2d 359 (1947). Among other things, discretion is abused when it is based on untenable grounds, such as a misunderstanding of......
  • Evans v. Firl
    • United States
    • Washington Court of Appeals
    • January 31, 2023
    ...to set aside a default judgment for abuse of discretion. Little , 160 Wash.2d at 702, 161 P.3d 345 (citing Yeck v. Dep't of Lab. & Indus. , 27 Wash.2d 92, 95, 176 P.2d 359 (1947) ). An abuse of discretion is more readily found when the trial court denies a trial on the merits than when a ju......
  • Morin v. Burris
    • United States
    • Washington Supreme Court
    • June 28, 2007
    ...ANALYSIS ¶ 15 We review a trial court's decision on a motion for default judgment for abuse of discretion. Yeck v. Dep't of Labor & Indus., 27 Wash.2d 92, 95, 176 P.2d 359 (1947).1 Discretion is abused if it is exercised on untenable grounds or for untenable reasons. Braam v. State, 150 Was......
  • Milwaukie Lumber Co. v. Veristone Fund I, LLC
    • United States
    • Washington Court of Appeals
    • March 29, 2021
    ...at 32-34. 2. Clerk's Papers (CP) at 1264. 3. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007) (citing Yeck v. Dep't of Labor & Indus., 27 Wn.2d 92, 95, 176 P.2d 359 (1947)). 4. TMT Bear Creek Shopping Ctr., Inc. v. Petco Animal Supplies, Inc., 140 Wn. App. 191, 199, 165 P.3d 1271 (20......
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