Lunday v. Department of Labor & Industries

SIMPSON, STEINERT, and ROBINSON, JJ., dissent. This is an appeal from a judgment dismissing an appeal from an order of the joint board of the department of labor and industries denying a pension claimed by appellant under the industrial insurance act.

For some time prior to February 21, 1935, appellant's deceased husband had been in the employ of Benjamin Franklin Thrift Stores, Inc., as a grocery clerk. He was, however, assigned to duty on the delivery truck on an average of two days a week. On the day mentioned, when alighting from the truck, after making deliveries, he sustained an injury. Subsequently, he submitted to an operation which was designed to correct the condition brought about by the injury. Post-operation nephritis developed, from which he died some months later.

The department denied appellant's claim for pension on two grounds: (1) That her husband, at the time of injury, was not a workman in contemplation of the industrial insurance act; (2) that the injury was not the cause of death. As the latter point is not especially stressed, we shall discuss it first.

[1] That the back condition, brought about by the injury, could be corrected only by operative procedure, is not disputed. Whether deceased had nephritis at the time of the injury, is not certain. He did have marked symptoms of it at the time of the operation. A week or ten days subsequent to the operation, nephritis developed to an unusual extent.

The department offered no medical evidence. From the testimony of two physicians who testified for claimant, we think it is clear that, if deceased did have nephritis at the time he was injured, the condition was so seriously aggravated by the injury and the subsequent operation as to result in death.

That operative procedure intervened and may have been the immediate cause of the condition from which death finally resulted, is immaterial. Right to compensation under the industrial insurance act persists as though the original injury were the immediate cause of death. See Ross v. Erickson Const.Co., 89 Wash. 634, 155 P. 153; Carmichael v. Kirkpatrick,185 Wash. 609, 56 P.2d 686.

[2] The principal question presented is whether, at the time he was injured, appellant's husband was a workman in contemplation of the industrial insurance act. This question arises from the manner in which the meat department was conducted in the particular store in which appellant's husband was employed. The Benjamin Franklin Thrift Stores, Inc., operated a number of complete food markets in Seattle and other places in the state. These markets handled groceries, fruit and vegetables, and meats. A free delivery service was maintained.

Of course, as a grocery clerk, appellant's husband was not a workman in contemplation of the industrial insurance act. For the grocery business is not classified as extrahazardous. But the meat business, where power machinery is used, is so classified. And this classification includes trucks by which deliveries of meat are made. The fact that the truck carried both meat and groceries on the trip, at the end of which appellant's husband was injured, is not in dispute. So there can be no doubt that he was engaged in extrahazardous work in contemplation of the act. [3] The department contends, however, that it does not follow that his widow is entitled to a pension, because his employer, the Benjamin Franklin Thrift Stores, Inc., was not engaged in an extrahazardous business. This contention is based on the fact that the latter had leased the space occupied by the meat market and had sold, on conditional bill of sale, the market fixtures and equipment to one Jared. We think this contention is without validity.

In considering the effect of the lease and bill of sale upon appellant's rights under the industrial insurance act, we must keep in mind the declared public policy of the act — particularly as manifested by Rem. Rev. Stat., § 7685 [P.C. § 3479], which provides:

"No employer or workman shall exempt himself from the burden or waive the benefits of this act by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void."

The lease in question contains a stipulation which, we think, brings the Benjamin Franklin Thrift Stores, Inc., within the purview of the act as an employer in an extrahazardous business. For it was stipulated that all deliveries of meat should be made by the lessor in its trucks. Jared paid the lessor thirty dollars a month for this service. So that, to the extent it was engaged in the business of delivering meat, the Benjamin Franklin Thrift Stores, Inc., was an employer in an extrahazardous business. And the deceased husband was, therefore, a part-time employee in an extrahazardous occupation. While engaged in the performance of such extrahazardous duties, he was a workman in contemplation of the act. Denny v. Department of Labor Industries, 172 Wash. 631,21 P.2d 275; Morris v. Department of Labor Industries, 179 Wash. 423, 38 P.2d 395. [4] In any event, an employee may, in contemplation of workmen's compensation acts, sustain the relationship of employee to two employers, a general employer who pays his wages and a special employer to whom he may be loaned and for whom he may be performing services. When such an employee is injured in the course of extrahazardous employment, he is a workman in contemplation of the workmen's compensation act, upon the theory that he is an employee of either one or both of the employers.Umsted v. Scofield Engineering Const. Co., 203 Cal. 224,263 P. 799; New York Indemnity Co. v. Industrial Acc. Commission,126 Cal. App. 37, 14 P.2d 160; Atherholt v. William StoddartCo., 286 Pa. 278, 133 A. 504; De Noyer v. Cavanaugh,221 N.Y. 273, 116 N.E. 992; Wright v. Cane Run Petroleum Co.,262 Ky. 251, 90 S.W.2d 36. In the latter case, the doctrine is stated:

"In such case, the employer who directs his servant to work for another is regarded in law as the general employer, and the one for whom he works as a special employer, and the relation of employer and employee, in the circumstances, exists between both of them and the employee, himself. If the employee is under the exclusive control of the special employer in the performance of work which is a part of his business, he is, for the time being, his employee; yet, at the one and the same time, he is the employee of the general employer, as well as the employee of the special employer. And he may, under the common law of master and servant, look to the former for his wages and to the latter for damages for negligent injuries; so under the Workmen's Compensation Act he

"``may so far as its provisions are applicable, look to the one or the other, or to both, for compensation for injuries due to occupational hazards.'"

Her husband having sustained injuries, in the course of extrahazardous employment, which caused his death. appellant is entitled to claim the benefits afforded by the industrial insurance act.

Judgment reversed.

MAIN, BEALS, MILLARD, GERAGHTY, and JEFFERS, JJ., concur.