McEachran v. Rothschild Company , 135 Wash. 260 ( 1925 )

ON REHEARING. [En Banc. December 22, 1925.] This case has been reheard and re-examined.

As to the amount of damages allowed respondent, which was very large and gave us much concern, we have carefully re-examined that question. In view of the great pain and suffering caused respondent by his injuries, which continued up to the time of his trial to some degree; his serious physical condition, which, according to the evidence, will be permanent; his total incapacity to work; the necessity of having an attendant constantly with him; and his liability of death at any time as the result of such injuries; we cannot see any legal reason for reducing the amount of damages, or requiring respondent to submit to a lesser amount or a new trial. The decision will therefore stand as to that.

We have become convinced, however, that our decision in some other respects was erroneous. By inadvertence in one place in the opinion it was said "that it (the 1919 amendment) meant to relegate workmen employed as respondent was employed to the remedy afforded by the maritime law for any injury received during the course of the employment." This, of course, was inadvertent in alluding only to the maritime law. What was meant by the writer of the opinion and the court was not that the workman was relegated to the maritime law exclusively; for as to some injuries, those received on shore, even though his time could not be segregated under the 1919 maritime amendment, his remedy would not be under the maritime law, but under the common law, while those received on navigable waters would, of course, come under the maritime law.

It was also stated in the former opinion, alluding to the practice of the board having in charge the workmen's compensation awards,

"That board does not require the time of the workmen to be kept with accuracy, but compromises ``on a fifty-fifty basis;' meaning, evidently, that it is fair to assume that such workman is engaged on an average, one-half of his time on shore, and one-half on navigable waters."

It was further stated that,

"The statute does not provide for a splitting of time, nor does it provide for a separate payroll for each individual. The language is general. If the payroll of the particular workman is not clearly separable or distinguishable from the payroll of the maritime class of workers, he must be included with them."

We are convinced, by the arguments on rehearing on behalf of appellant, and also by several of Amici Curiae who presented arguments, that this part of the decision is inconsistent with a former decision; Puget Sound Bridge Dredging Co. v. IndustrialInsurance Commission, 105 Wash. 272, 177 P. 788, and with the language and spirit of the 1919 amendment. The amendment was enacted shortly after the decision in the above cited case, where we held that workmen employed solely upon land were within the operation of the workmen's compensation act, and workmen engaged both upon land and navigable water were not within the operation of the act while working upon navigable water. The 1919 amendment clearly provides, and was intended to provide, that, where the payroll can be clearly separated and distinguished, that substantial part representing work performed upon land shall be under the provisions of the act, while that not clearly separable and distinguishable shall fall under other remedies authorized by law. In other words, as the act says, "to the extent that the payroll of such workman may and shall be clearly separable and distinguishable, etc." (not on a fifty-fifty basis), but to anyextent that it is clearly separable and distinguishable, the payroll shall be so separated and distinguished. Under that provision there may be cases where the payroll is clearly separable and distinguishable as to one-tenth of the workman's time, and not simply and arbitrarily fifty-fifty as was said to be the rule by the compensation department. In the case at bar, the payroll was not clearly separable and distinguishable, and we adhere to our decision in that respect.

If it is practical to keep an accurate check of the time and payroll of a stevedore who works alternately on shore and on navigable water, that must be done under the 1919 amendment. The stevedore would then certainly come within the terms of the act while working on shore. He would be entitled to the benefits of his other legal remedies while working on clearly separable and distinguishable work on ship board.

In the foregoing respects, the decision of the Department is modified; in all other respects, affirmed.

TOLMAN, C.J., ASKREN, MACKINTOSH, MAIN, MITCHELL, and PARKER, JJ., concur.