Kendall v. Department of Labor & Industries ( 1926 )

Parker, J.

This is an appeal by the state department of labor and industries from a judgment of the superior court for Pierce county, rendered upon a verdict of a jury directing the awarding of compensation to respondent, Mrs. Kendall, for the death of her husband, resulting, as she claims, from an injury occurring to him while he was engaged in an extra hazardous employment at the plant of his employer. The trial and disposition of the case in the superior court was upon an appeal taken by Mrs. Kendall from the rejection by the department of her claim for compensation.

The only contention here made in behalf of the department, which we are required to notice as the merits of the appeal is that the trial court erred in denying the department’s motions, timely made, to take the case from the jury and decide as a matter of law that the evidence did not warrant any award to Mrs. Kendall.

This contention, as here argued, presents only the question as to whether or not the evidence warrants the conclusion, as a mater of fact, that the' injury resulting in Mr. Kendall’s death occurred while in the course of his extra hazardous employment at the plant of his employer. He was employed in the woodworking manufacturing plant of the Wheeler-Osgood Company of Tacoma. His work consisted almost wholly in handling newly made window sash. While he worked at this employment during the usual working hours of each day, he also did about an hour’s janitor work each morning for the Crumley Business College in Tacoma. On about December 23, 1924, his hand was injured as the result of some accident, by having a splinter injected into it. He paid no attention to it at the time; indeed, he seems not to have known just when it occurred. On the following day his injury becamó so serious and painful that he was compelled to quit work, and treatment of his hand was commenced by a physician. The wound had become infected in some manner, and continued to grow so serious that he died from blood poisoning on January 3,1925.

His work in the handling of the window sash was such as to cause him to frequently get splinters in bis hands, and render it highly probable that tbe particular wound received by him, and from which be died, occurred while be was so handling tbe window sash, unless tbe evidence showed some degree of probability that be received tbe wound from some other source. Tbe only argument advanced in this behalf is that it was equally likely that be might have received tbe wound from bis work as a janitor for tbe business college. We think, however, tbe jury was, in view of the nature o'f that work as disclosed by tbe evidence, fully warranted in viewing bis work in handling tbe window sash, which was bis extra hazardous employment, as much more likely to be tbe place and occasion of receiving bis injury. Under these circumstances, we think tbe evidence was sufficient to support tbe award made by tbe verdict and judgment.

gome contention is made in behalf of tbe department, that tbe trial court awarded to Mrs. Kendall an excessive amount as attorney’s fees [$400] in tbe prosecution of her claim in tbe courts. We are unable to see that tbe court abused its discretion in this respect.

Tbe judgment is affirmed.

■ Tolman, O. J., Main, and Mackintosh, JJ., concur.