Zahler v. Department of Labor and Industries

• Decision Date: 03 July 1923
• Docket Number: 18030.
• Citation: 217 P. 55,125 Wash. 410
• Court: Washington Supreme Court
• Parties: ZAHLER v. DEPARTMENT OF LABOR AND INDUSTRIES.

217 P. 55

125 Wash. 410

ZAHLER v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 18030.

Supreme Court of Washington

July 3, 1923

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Proceedings under the Workmen's Compensation Law by Anna Vogler Zahler, for compensation for the death of her husband, Joseph Vogler, and for compensation awarded to him prior to his death, opposed by the Palmer Shipbuilding Company. Orders of the Department of Labor and Industries rejecting claims were reversed by the superior court and the Department appeals. Judgment reversing order rejecting claim for compensation awarded, but not paid, reversed, and judgment reversing order rejecting claim for compensation for husband's death affirmed.

Tolman and Pemberton, JJ., dissenting in part.

John H Dunbar, of Olympia, for appellant.

Alfred J. Schweppe, of Seattle, for respondent.

PARKER, J.

This is an appeal from a judgment of the superior court for King county, reversing two orders of the department of labor and industries rejecting two claims of Anna Vogler Zahler formerly Anna Vogler, individually and as guardian of her minor children. One claim is for a permanent partial disability suffered by her former husband, Joseph Vogler while engaged in an extrahazardous employment, upon which an award was made to him by the department, but not consummated by payment thereof prior to his death. The other claim is for the death of her former husband, Joseph Vogler, occurring in the course of his employment, which was extrahazardous. She appealed to the superior court, wherein judgment was rendered reversing both orders of the department, and directing awards to be made as prayed for. The department thereupon appealed from this disposition of the case to this court. Mrs. Vogler married again after the death of her former husband, Joseph Vogler, which accounts for her name now being Anna Vogler Zahler. We shall hereafter refer to her as respondent and to the department as appellant.

The controlling facts with reference to the permanent partial disability claim are not in dispute and may be summarized as follows: On November 27, 1918, while working in an extrahazardous employment and under the protection of our Workmen's Compensation Law, Vogler suffered an injury to one of his eyes. On August 28, 1919, appellant made to him an award as for permanent partial disability in the sum of $600. On August 30, 1919, after the award was so made, but before a warrant was issued to Vogler in payment thereof, he was killed while in the course of his employment. He left surviving him his widow, this respondent, and their two minor children. Thereafter respondent, in behalf of herself and children asked appellant to make payment of the $600 award to her which it refused to do, resting its ruling on the ground that under our Workmen's Compensation Law the right to the unpaid award did not survive to Vogler's widow or children, and that that law does not provide for the making of any award to workmen's widows or children for an injury or disability, short of death, suffered by them.

The controlling facts with reference to the death claim are not in dispute, and may be summarized as follows: At all times in question Joseph Vogler was a carpenter, employed by the Patterson-McDonald Shipbuilding Company at Seattle, which company was regularly contributing to the accident fund under our Workmen's Compensation Law. On August 30, 1919, Vogler was working as a carpenter in the construction of a ship which the shipbuilding company was constructing at its shipyards in Seattle, under a contract therefor with the United States Shipping Board Emergency Fleet Corporation; which ship, though unfinished, had just been launched and was floating in the navigable waters of Puget Sound. On that day, while so working on the ship, Vogler was killed by falling into the hold thereof. He left surviving him this respondent, his widow, and their two minor children. Thereafter respondent made claim to appellant for compensation in behalf of herself and children for the death of her husband under the Workmen's Compensation Law. This claim was rejected and disallowed by appellant, resting its ruling upon the ground that Vogler's death occurred outside of the scope and jurisdiction of our Workmen's Compensation Law and within the exclusive scope and jurisdiction of admiralty jurisdiction and maritime law.

We first inquire as to respondent's rights with reference to her claim to the $600 award made to Vogler, her former husband, and not consummated by payment before his death, for his permanent partial disability. It is here conceded by her counsel that she has no right to that award by virtue of it surviving to her as heir or personal representative of Vogler upon his death; that is, that she has no right to that award by virtue of it having become an asset of his estate. It was in effect so determined by our decision in Ray v. Industrial Insurance Commission, 99 Wash. 176, 168 P. 1121, L. R. A. 1918F, 561, construing section 10 of the Workmen's Compensation Law (Laws of 1911, p. 364), in force at the time Vogler was injured. It is, however, here contended in respondent's behalf that by the terms of our Workmen's Compensation Law in force at the time Vogler was injured, she is entitled to the $600 award made to him and not consummated by payment prior to his death. Our decision in the Ray Case had to do only with the claim of an administrator of a deceased workman, who left no heirs and no estate, other than his unpaid claim against the accident fund for a permanent partial disability of the same nature as the one here involved; and left debts approximating some $400, for the payment of which his estate was liable. So there was not drawn in question in that case any claimed right of the workman's family or departments under the terms of our Workmen's Compensation Law, but only the question of whether or not Ray's claim against the accident fund survived as a part of his estate to his personal representative, to wit, his administrator. The terms of the law, as existing at the time Vogler was injured, which, it is conceded, are controlling in our present inquiry, in so far as they need be here noticed, are found in section 1, c. 28, of the Laws of 1917, amendatory of the previous law, as follows:

'Each workman who shall be injured whether upon the premises or at the plant, or, he being in the course of his employment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.'

Subdivision (a) of the schedule, made part of that section, provides for death claims payable to the family or dependents of the workman losing his life in the course of his employment without any reference whatever to claims payable to the workman for injuries not resulting in his death. Subdivision (b) of the schedule, made part of that section, provides for claims payable to the workman for permanent total disability suffered in the course of his employment. Subdivision (c) of the schedule, made part of that section, provides for death claims payable to the family or dependents of the workman when the workman dies 'during the period of permanent total disability, whatever the cause of death.' Subdivision (d) of the schedule, made part of that section, provides for claims payable to the workman 'when the total disability is only temporary.' Subdivision (f) of the schedule, made part of that section, provides for claims payable to the workman for 'permanent partial disability.' It was under this subdivision that the $600 award was made by appellant to Vogler, but not consummated by payment prior to his death which resulted from a cause entirely apart from the injury resulting in his permanent partial disability. Subdivision (g) of the schedule, made part of that section, provides for claims payable to the workman for 'further accident' suffered by him after an award made to him for a previous injury. Subdivision (h) of the schedule, made part of that section, provides for readjustment of an award to a workman upon 'aggravation, diminution, or termination of disability' for which a previous award has been made to him. We do not see in any of the provisions of this section, or elsewhere in the Workmen's Compensation Law as existing at the time Vogler was injured, any suggestion of legislative intent to award any compensation to the family or dependents of a workman for any injury he may suffer in the course of his employment, other than in subdivision (c) above noticed, relating to death following total disability after an award made to him for such disability; unless, as is argued by counsel for respondent, such legislative intent is to be found in the above-quoted introductory paragraph of the section preceding the lettered subdivisions of the schedule therein above noticed. It is argued that the words 'or his family or dependents in case of death of the workman,' preceded by the words 'each workman who shall be injured' found in the introductory paragraph of the section, make his family or dependents, following his death, the direct beneficiaries of any unpaid claim he may justly have against the accident fund before his death. This argument proceeds apparently upon the theory that the words 'or his family or dependents in case of death of the workman' refer to every possible award which is allowable under the following lettered subdivisions, not only for the workman's death, but also for his injury which does...