Carter v. Dept. of Labor and Industries , 183 Wash. 86 ( 1935 )

Whether claimant had two missions at camp 20 on the Sunday afternoon in question, namely: one, to replace a defective safety-valve on the locomotive on which he was a fireman; and two, to fire up so that steam would be ready Monday morning, is entirely immaterial. The matter of the pop-valve and whether claimant was a mere volunteer to take it and replace it on the engine, or whether directed so to do by the engineer in charge, is unimportant.

It is undisputed that it was the duty of claimant to go to the engine on Sunday afternoon or evening and fire the locomotive so that it would be ready to operate Monday morning. For that duty, he was allowed pay by his employer. Consequently, it is undisputable, as a matter of fact and of law, that claimant was proceeding to perform a duty for his employer which no one else was employed to perform. This undisputed evidence conclusively establishes that the decisions of the department and of the majority were and are wrong.

There can be no distinction in principle between this case and those cited by the majority as those upon which respondent relies, especially Burchfield v. Department of Labor Industries, 165 Wash. 106, 4 P.2d 858; Church v. Departmentof Labor Industries, 179 Wash. 443, 38 P.2d 234 and MacKayv. Department of Labor Industries, 181 Wash. 702,44 P.2d 793.

Hama Hama Logging Co. v. Department of Labor Industries,157 Wash. 96, 288 P. 655, and Blankenship v. Department ofLabor Industries, 180 Wash. 108, 39 P.2d 981, cited and relied upon by the majority, are easily distinguishable. In theHama Hama case, as was stated, the workman was injured while being conveyed on a speeder from a Sunday trip to town for recreation. There was no duty on his part to return on Sunday afternoon to perform a necessary service for his employer. In theBlankenship case, the writer of the opinion very definitely and positively declared:

"This was not an industrial injury or accident, but an unjustifiable homicide, committed while the deceased was not `in the course of his employment,' by one who was in no manner connected with the service or employment in which the deceased was engaged. Clearly, the injury and death of Blankenship were in no way directly or indirectly, mediately or immediately related to his employment."

The decision of the majority in this case is so clearly opposed to the facts and the law as to be entirely unjustifiable.

For these reasons, I am compelled to dissent. The judgment should be affirmed.

BLAKE, J., concurs with HOLCOMB, J.