Sweitzer v. Department of Labor & Industries ( 1934 )

ON REHEARING. [En Banc. July 2, 1934.] On rehearing of this case, a majority of the court conclude that the former opinion was erroneous in two particulars, and must be overruled.

[2, 3] On the merits, the dissenting opinion of Blake, J., concurred in by three other judges, is now adopted as the prevailing opinion without unnecessary duplication here.

[4] The former opinion was also erroneous in another particular. It disregarded the contention of respondent that the report of Dr. Goodnow, on which the department and the majority of this court in the former decision largely based their opinions, was erroneously received in evidence.

Rem. Rev. Stat., § 7697, provides, in substance, that the rehearing before the joint board shall be de novo and summary, but no witness' testimony shall be received unless he is first sworn to testify the truth, etc., in the matter being heard, or unless his testimony shall have been taken by deposition according to the statutes relating to superior courts of this state. Dr. Goodnow was not called at the hearing in the superior court. He was not sworn as a witness, and under the above cited statute, the joint board had no right to consider his report, nor did the superior court, nor this court, both of which heard the case de novo.

In the Cheney case, supra, [Cheney v. Department of Laborand Industries, 175 Wash. 60, 26 P.2d 393], it was held that Rem. Rev. Stat., § 7697, providing, "the decision of the department shall be prima facie correct,"

". . . although to be kept in mind, cannot have the same presumptive effect when the testimony is taken before an examiner and a transcript thereof submitted to the board, as where it is taken before one or more members of the board."

The former opinion of the court is, therefore, overruled, and the judgment of the trial court affirmed.

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

BEALS, C.J., TOLMAN, and STEINERT, JJ., dissent.