# West v. Mount Vernon Sand & Gravel, Inc. > Washington Supreme Court · September 22, 1960 · 56 Wash. 2d 752 URL: https://www.frixlaw.com/law-library/cases/9557432 ## Case - **Full name:** Ezekiel West, Respondent, v. Mount Vernon Sand and Gravel, Inc., Appellant - **Court:** Washington Supreme Court - **Decided:** September 22, 1960 - **Citations:** 56 Wash. 2d 752; 355 P.2d 795; 1960 Wash. LEXIS 412 - **Precedential status:** Published - **Opinion:** Dissent by Mallery - **Judges:** Finley, Mallery, Hill, Donworth, Ott, Weaver, Rosellini, Foster, Hunter - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9557432 ## Opinion text Mallery, J. (dissenting) — The decisive question in this case is whether or not the respondent was engaged in extra-hazardous employment at the time of his injury, for upon this issue hangs his right to maintain a common-law action. If he was not so engaged, it is immaterial whether his own employer or some one else caused his injury, for he has a common-law cause of action in either event. The Workmen’s Compensation Act has specifically divested the trial court of its common-law jurisdiction if he was engaged in extrahazardous industry at the time of the injury. Neither a jury nor the parties by stipulation can restore the jurisdiction which was divested by the act. This is true notwithstanding the right of trial by jury. It is true that Art. I, § 21, of the state constitution provides: “The right of trial by jury shall remain inviolate, . . . ” This does not mean, however, that juries are arbiters of the law. Art. IV, § 16, of the state constitution provides: “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” (Italics mine.) *759 There is, perhaps, no principle of law so universally accepted as the one which makes questions of law the exclusive province of the court and relegates the jury’s function to determining questions of fact. The appellant challenged the jurisdiction of the court and, therefore, when it appears from the most favorable view of the evidence that there is no common-law jurisdiction over the case, the judgment cannot stand. A question of fact arises as to the jurisdiction of a court to hear a case only when conflicting evidence is so divergent in theory and effect that the jury’s finding either way would be sustained as being in accord with established law. No jury question is presented in this case because it is immaterial whether the respondent was injured before or after eight o’clock a. m. Under both versions of the facts, the respondent was employed in extrahazardous employment as a matter of law. We have so held. The fact of engagement in extrahazardous employment, at the time of an injury, is not to be determined solely by reference to the clock unless there is an absence of acts and circumstances having a more direct bearing upon the question. This is the rationale of Gordon v. Arden Farms Co., 53 Wn. (2d) 41, 330 P. (2d) 561 , which is precisely in point. In that case, the worker had not yet punched the time clock, which, it had been contended, was a prerequisite to starting her workday. The same contention, regarding the occurrence of the injury before the beginning of the workday, is made in this case, only it is here predicated upon the time in question being shortly before the customary start of the workday at eight o’clock a. m., on an ordinary clock. Here, as in the Gordon case, the circumstances are controlling upon the question of the workman being engaged within the scope of his employment. They are, in brief, that the respondent was injured on the site of the construction project upon which he was employed. The concrete truck that injured him was in the act of delivering concrete for use in the construction of the building. The respondent was preceding it to the place where he was to perform his *760 assigned task in the dumping operation. Under these circumstances, reasonable minds could not believe that the respondent was engaged upon a private excursion of his own unrelated to his employment. There has never been a case in this state or any other where a workman has been excluded from the benefits of the Workmen’s Compensation Act under the circumstances of this case. The applicability of the act is fatal to the trial court’s common-law jurisdiction. The state constitution prohibits a court from turning its function of declaring the law over to a jury. That is the result, however, of permitting a jury to confer common-law jurisdiction on the court where there is no substantial dispute as to the facts of the case which bring it under the act. It is not the province of juries to rewrite the jurisdictional aspects of the Workmen’s Compensation Act. It will not take them long to do so if they are so empowered by our decisions. The instant case, where the facts are not in substantial conflict and the applicability of the act is clear, is the opening wedge. But let a workman be injured while he is scratching himself and hereafter the jury can declare the law and find that the act did not further the employer’s business and was, therefore, in the nature of a private excursion of the workman outside the scope of his employment. Common-law jurisdiction over the injury will thus be conferred upon the court. Indeed, no conceivable injury can occur in the future where in the eyes of a jury the workman could not exclude himself from the coverage of the act by simply testifying to some fleeting action of his, at the time of his injury, which was not performed on behalf of his employer. Courts should face their responsibilities and not turn their constitutional functions over to juries. When juries can declare the law a new source of legislation will have been inaugurated. Judicial legislation sometimes raises a question of constitutional sanction, but jury legislation was beyond the pale until now. *761 I dissent. Hill, Donworth, and Ott, JJ. (dissenting) — We concur in the result of the dissent and would dismiss the action. December 1, 1960. Petition for rehearing denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9557432. Public record. Not legal advice.