Epley v. Department of Labor & Industries , 191 Wash. 162 ( 1937 )

STEINERT, C.J., TOLMAN, BEALS, and ROBINSON, JJ., dissent. Hazel Epley, while engaged in an employment defined under the workmen's compensation act as extrahazardous, sustained injuries from which she died. She left two children, Jack and Marie, under sixteen years of age. Their father, Ernest Epley, having been appointed guardian, made claim for compensation in their behalf to the department of labor and industries. The supervisor denied the claim on the ground that the claimants did not come within the terms of the act. Application to the joint board for rehearing was denied for the same reason. Appeal was taken to the superior court of Thurston county. The court sustained the ruling of the department and entered judgment dismissing the appeal. From the judgment so entered, claimants appeal.

The section of the statute upon which the claim is predicated is Rem. Rev. Stat., § 7679 [P.C. § 3472] (a) (1), which reads as follows:

"If the workman leaves a widow or invalid widower, a monthly payment of thirty-five dollars ($35.00) shall be made throughout the life of the surviving spouse, to cease at the end of the month in which remarriage shall occur, and the surviving spouse shall also receive per month for each child of the deceased under the age of sixteen years at the time any monthly payment is due the following payments: For the youngest or only child twelve dollars and fifty cents ($12.50), for the next or second youngest child seven dollars and fifty cents ($7.50), and for each additional child five dollars ($5.00): Provided, That in addition to the monthly payments above provided for, a surviving widow of any such deceased workman shall be forthwith paid the sum of two hundred and fifty dollars ($250.00)."

[1] It was the contention of the respondent and the view of the trial court that, when a woman worker comes to her death in consequence of injuries sustained in an extrahazardous employment, leaving children under sixteen and a husband who isnot an invalid, the children are not entitled to compensation. An analysis of the statute alone gives much support to this position. But since the judgment was entered in the court below, this court has rendered a decision which we think necessarily implies a different construction of the section under consideration. Anthony v. National Fruit Canning Co., 185 Wn. 637, 56 P.2d 688. In that case, a woman worker died from injuries sustained while she was engaged in an extrahazardous employment. Her husband was appointed administrator of her estate. As such, he brought an action against the employer, under the wrongful death statute, for the benefit of himself and four children under sixteen years of age. Demurrers to the complaint were sustained, and judgment was entered dismissing the action. On appeal, the judgment was affirmed. The question presented was stated as follows:

"Where a woman workman dies as a result of injury in extrahazardous employment, can the minor children and the surviving husband, who is not an invalid, maintain an action under the wrongful death statute against the employer, through the personal representative of the deceased workman?"

Disposing of the question, the court said:

"There is nothing in the pleadings or the judgment in this case as to whether the widower is an invalid. The act granting a right to recover damages for the death of a person, caused by the wrongful act, neglect or default of another (Session Laws 1917, p. 495, Rem. Rev. Stat., §§ 183, 183-3 [P.C. §§ 8259, 8263]) was not intended to repeal or supersede any part of chapter 74, Laws of 1911, p. 345, the workmen's compensation act. Section 5 of the 1917 act, p. 496, says:

"``This act shall not repeal or supersede chapter 74 of the Laws of 1911 and acts amendatory thereof, or any part thereof.' Rem. Rev. Stat., § 183-3 [P.C. § 8263].

"In the present case, according to the allegations of the second amended complaint, we are considering and dealing with an injury consisting of a ``sudden and tangible happening of a traumatic nature producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom,' which is the meaning of the word ``injury' in the workmen's compensation act, as the act was amended, Laws 1927, p. 818, § 2; Laws 1929, p. 325, § 1; Rem. Rev. Stat., § 7675 [P.C. § 3470]. This kind of injury falls within the scope and purpose of the workmen's compensation act, according to uniform decisions."

While § 7679 (a) (1) was not specifically mentioned or discussed in the opinion, it was the only section under which the Anthonys could have had relief under the workmen's compensation act. It seems too plain for argument that the theory upon which they were denied relief in their action for wrongful death was that their remedy was to be found in the compensation act.

Furthermore, we there said:

"The right of action and the remedies formerly available under the factory act, in cases such as the one alleged in the second amended complaint in this action, have been superseded by the workmen's compensation act. Appellant has no right of action under the factory act."

To reverse our decision in the Anthony case, supra, would create an anomalous situation which would be indefensible.

In Roswall v. Grays Harbor Stevedore Co., 132 Wn. 274,231 P. 934, we decided that the workmen's compensation act abolished the remedy of the death statute

". . . only in those causes falling within the scope of the act . . . not those wherein it does not afford a complete remedy for both the employer and the employee."

In the case at bar, claimants are asking for the very relief to which the Anthonys were relegated in that action. If we now hold that claimants can have no relief under the workmen's compensation act, we must say that the children of a woman worker, killed in an extrahazardous employment, have no remedy at all unless they also happen to be so unfortunate as to have an invalid father. To so hold, we would have to ignore, not only the maxim that there can be no wrong without a remedy, but also the spirit of the workmen's compensation act, which is, by specific declaration, designed to provide "sure and certain relief for workmen, theirfamilies and dependents."

The theory upon which the act was originally held constitutional was that sure and certain relief was substituted for the remedies which were abolished. State ex rel. Davis-SmithCo. v. Clausen, 65 Wn. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466.

We conclude that the claimants in this proceeding come within the purview of Rem. Rev. Stat., § 7679 (a) (1).

The judgment is reversed, and the cause remanded with directions to refer the claim back to the department for further proceedings.

MAIN, GERAGHTY, and BLAKE, JJ., concur.