Prince v. Saginaw Logging Co. , 197 Wash. 4 ( 1938 )

The majority opinion holds (1) that the respondent employer, having acquiesced in the departmental decision by its failure to appeal, is concluded thereby and is therefore estopped from attacking it collaterally; and (2) that, as a consequence, the appellant workman is entitled to maintain, in the courts, a common law action for damages against the employer.

I am unable to agree with the majority upon either of these propositions.

I. The duty to appeal arises only when there is a right to appeal. A right to appeal from an order, decision or award of the department is given only to a claimant, employer or other person who has been aggrieved thereby.

"It is patent that, before one may appeal to the courts, he must be a person aggrieved by an order, decision, or award made by the supervisor, and must serve upon the director of the department an application for rehearing before the joint board of the department." Albrecht v. Department of Labor Industries,192 Wn. 520, 74 P.2d 22.

In this case, the order of the supervisor rejecting the workman's claim did not aggrieve the employer, but only the workman. From such order, the workman of course had the right to take an appeal, as provided by the statute. But this he did not do. He accepted the order, which was adverse to him and which, so far as that proceeding was concerned, was not unfavorable to the employer.

We have held that, when the claim of a workman is allowed by the supervisor, the employer is to be considered as an "aggrieved" party and may apply for a rehearing before the joint board, and, ultimately, may appeal to the courts. State ex rel.Crabb v. Olinger, 191 Wn. 534, 71 P.2d 545; Mud BayLogging Co. v. Department of Labor Industries, 193 Wn. 275,75 P.2d 579. This is upon the theory that the employer's cost experience has been affected by the allowance of the claim. But that consideration is not present here, because the claim was rejected, and hence the employer's cost experience was not affected.

The theory upon which the majority opinion rests is that the employer was aggrieved by the order of the department in that the employer was thereby "subjected to the hazard of a suit at common law."

I do not know whether the term "hazard of a suit" was used in the majority opinion as meaning simply the chance, or possibility, of being sued, or as referring to the risk of being required to defend a suit, or as suggestive of the possible result, or outcome, of a suit in the event that one should be brought. However, it is immaterial which meaning was intended or whether all are included; for, in either, or any, event, the "hazard" rests primarily on the mere possibility that the workman may eventually institute a common law action against his employer.

The protection which the statute actually affords an employer is, certainly, not immunity from the possibility, or even the probability, of being sued, nor immunity from the risk of being required to defend a suit, nor immunity from the possible result of an imaginable action. The protection afforded is immunity from liability in case suit is brought.

Whether a workman will, or may, commence a civil suit against his employer, is not legally determined by the action which the department takes upon his claim, but rests entirely in the workman's volition. If he does commence such suit, it is not founded upon any right conferred by the prior action of the department, but rests solely upon the alleged negligence of the employer. When the department rejects the claim of a workman, it does not thereby adjudicate, nor can it adjudicate, that there was any actionable negligence on the part of the employer; for, by the express wording of the workmen's compensation act, relief to workmen injured in extrahazardous work is granted regardless of questions of fault.

To say, then, that the rejection of a claim by the department subjects the employer to the "hazard of a suit" is to assume (1) that there was negligence which would support a civil suit, and (2) that the employee will bring an action based thereon. Neither of these assumptions is justified; (1) Because negligence can not be presumed, but must be established in an independent action wherein the defendant has the right to be heard; and (2) because the possibility of suit exists, not by virtue of any right arising out of the decision of the department, but wholly because our system of jurisprudence permits any man to institute an action against anyone else, whether the action be well grounded or not. To be aggrieved by an order of either a judicial or quasi-judicial body, entitling one to appeal therefrom, the appellant must be able to point out specifically wherein the enforcement of such order will, of itself, determine, or adversely affect, some personal or property right belonging to him. But no man has a right not to be sued, which is but another way of saying that one is not aggrieved, in law, by the mere possibility that suit may ultimately be brought against him.

The majority opinion cites the following authorities as tending to support its position: Kidder v. Marysville Arlington R. Co., 160 Wn. 471, 295 P. 162, 300 P. 170;Abraham v. Department of Labor Industries, 178 Wn. 160,34 P.2d 457; Ek v. Department of Labor Industries, 181 Wn. 91,41 P.2d 1097; Luton v. Department of Labor Industries,183 Wn. 105, 48 P.2d 199.

In each of those cases, with the exception of the Kidder case, the controversy was between the department and the claimant workman. This is conceded in the majority opinion. In theAbraham and Luton cases, the court went no further than to say, upon the point here involved, that a judgment of the department, resting upon findings of fact, is final and conclusive upon the department and upon the claimant unless set aside on appeal. In the Ek case, it was held that the judgment was also binding upon those claiming by, through, or under theclaimant. In the Kidder case, it was held that the findings of the department were binding "upon all parties concerned;" but the findings therein referred to were in support of an allowance, and not of a rejection, of a workman's claim. Although the employer did not appeal in that case, it might have done so, for it was an aggrieved party in that (1) its cost experience could have been said to be affected, and (2) the department had found, as it was authorized to do under the statute, that the employer was a private carrier and therefore within the workmen's compensation act. Those cases are not applicable to the situation here.

The majority opinion then cites the following cases as confirming its position: Seattle Can Co. v. Department of Labor Industries, 147 Wn. 303, 265 P. 739; Hama Hama LoggingCo. v. Department of Labor Industries, 157 Wn. 96,288 P. 655; Mud Bay Logging Co. v. Department of Labor Industries,189 Wn. 285, 64 P.2d 1054; on rehearing 193 Wn. 275,75 P.2d 579.

In the Seattle Can Co. case, the employer took an appeal from an order of the department rejecting the workman's claim, and its right so to do seems to have been assumed; at least, no question was raised against it. The opinion does not discuss the question at all, and, of course, is no authority thereon.

In the Mud Bay Logging Co. case, the right of the employer to appeal is recognized, but both opinions in the case also recognize the rule for which I contend, namely, that the party appealing must have been aggrieved by the order of the department. They also recognize the principle, already stated herein, that a charge upon the cost experience is a grievance entitling the party to appeal. In that case, the cost experience of the employer was affected, hence it had the right to appeal.

The Hama Hama case comes the nearest of all in supporting the majority opinion herein, for in that case we did say:

"From the order of the department rejecting the claim, the logging company appealed, as was its right under § 8, ch. 310, Laws of 1927, p. 850, to the superior court for Thurston county."

It appears, however, from the opinion itself, that the employer had joined with the employee in asking that the claim beallowed, and appealed because it was rejected. In other words, the order of the department was adverse to the contention of the employer. It also appears from the opinion that before the appeal was taken, it was certain that the workman would institute a common law action against the employer, for the workman had so notified the department.

But, aside from all that, the question of the right of the employer to appeal under such circumstances was never raised in the trial court, nor in this court. As specifically appears by statements in both briefs in the case, the sole question submitted to us was whether the claimant was injured in the course of his employment. Hence, the terse and gratuitous pronouncement in the opinion, above quoted, is obiter dictum, and should not control a case, such as this, where the question has been squarely raised and discussed, and is to be decided.

My conclusion upon the first point is that the employer was not an aggrieved party, did not have a right to appeal, and is, therefore, not estopped from attacking the order rejecting the claim.

II. Upon the second question, namely, the right of the workman to maintain, in the courts, a common law action for damages against the employer, the majority, in my opinion, overlooks the basic element necessary to support such action, viz., jurisdiction of the subject-matter.

Rem. Rev. Stat., § 7673 [P.C. § 3468], emphatically provides that:

". . . all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided."

The exceptions are subsequently provided for in § 7680 [P.C. § 3473] (relating to injuries resulting from the deliberate intention of the employer); §§ 7693, 7695 [P.C. §§ 3486, 3486b] (relating, under certain conditions, to interstate and intrastate employees); § 7693a [P.C. § 3486a] (relating to certain employees engaged in maritime occupations); and § 7697 [P.C. § 3488] (relating to the procedure for court review of orders, decisions, and awards made by the department).

By a long line of decisions, this court has consistently held that the act means what it says, namely, that the common law right of action accruing from an injury received by a workman in the course of his employment is abolished, except as otherwise provided in the act. State ex rel. Davis-Smith Co. v. Clausen,65 Wn. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466; Peet v.Mills, 76 Wn. 437, 136 P. 685, Ann. Cas. 1915D, 154, L.R.A. 1916A, 358; Ross v. Erickson Const. Co., 89 Wn. 634,155 P. 153, L.R.A. 1916F, 319; Stertz v. Industrial Ins. Commission,91 Wn. 588, 158 P. 256, Ann Cas. 1918B, 354; Zenor v.Spokane Inland Empire R. Co., 109 Wn. 471, 186 P. 849;Perry v. Beverage, 121 Wn. 652, 209 P. 1102, on rehearing 664, 214 P. 146; Carmichael v. Kirkpatrick, 185 Wn. 609,56 P.2d 686; Mud Bay Logging Co. v. Department of Labor Industries, 193 Wn. 275, 75 P.2d 579.

The majority opinion, however, reinvests the court with jurisdiction, upon the theory of estoppel. But jurisdiction of the subject-matter cannot be conferred in that way. All the powers of any court must be derived from the government which created it, and, as applied to the subject-matter of a suit, jurisdiction is always conferred by law. 14 Am. Jur. 365.

"Jurisdiction, in the general sense, as applied to the subject matter of a suit at law or in equity, must be found in and derived from the law which organizes the tribunal; and where there is an absence of power conferred by law a court will not act in the premises. Jurisdiction is regulated by the constitution, or by statutes enacted pursuant to the constitution, and by the common law so far as not repugnant to the federal and state constitutions and laws, and courts can neither decline jurisdiction conferred upon them nor assume that which is not conferred." 15 C.J. 730.

It is the universal rule that parties cannot, by consent, waiver, or estoppel, confer upon a court jurisdiction of the subject-matter when the court does not otherwise possess such jurisdiction. 14 Am. Jur. 380; 1 Bancroft's Code Practice and Remedies, 950, Vol. 2 of the Ten Year Supplement, 1673.

In Hammel v. Fidelity Mutual Aid Ass'n, 42 Wn. 448,85 P. 35, this court said:

"It is an elementary principle that neither an appearance nor consent of the parties will confer jurisdiction of the subject-matter, but such jurisdiction is derived wholly from the statutes. The court was therefore without power to determine the action upon its merits, notwithstanding the appearance was general in form."

In State ex rel. Harris v. Hinkle, 130 Wn. 419,227 P. 861, we said:

"Our first duty is to inquire as to our power to grant the writ, for jurisdiction cannot be conferred upon this court either by stipulation, waiver or consent; State ex rel. Bennett v.Taylor, 54 Wn. 150, 102 P. 1029, and we are compelled to go to the constitution for the source of our original jurisdiction."

The rule is clearly and comprehensively stated in Isham v.People, 82 Colo. 550, 262 P. 89, as follows:

"Jurisdiction of the subject matter is conferred by the Constitution and laws of the state, not by the action of one or both of the parties. The parties themselves are powerless, by act or conduct, either to confer upon, or withhold from, the court jurisdiction of the subject matter. That comes from the Constitution and laws of the state."

Regardless, then, of any so-called estoppel of respondent by its failure to appeal from the decision of the department, it became the duty, and certainly was the right, of the trial court to determine, in this case, whether it had jurisdiction of the subject-matter of the action. This the court did, for, when it found that appellant received his injury in the course of his employment, it necessarily followed that the court had no jurisdiction to entertain a civil suit for damages.

Whether the court was right in its decision upon that question is, of course, subject to review, and it may well be that under the facts of the case, we might arrive at a different conclusion. But, inasmuch as the majority has not discussed that question, I shall not enter upon it. My only concern at present is the principle laid down by the majority, with which I do not agree.

I dissent.

ROBINSON and SIMPSON, JJ., concur with STEINERT, C.J.