No other result can be arrived at, unless the court abandons the erroneous rule of decision employed in the McKinnie, Devlin,Bergagna, Barnes, McCormick Lbr. Co., and Northwest MetalProducts Co. cases, cited in the foregoing opinion, and some others not cited, such as Frandila v. Department of Labor andIndustries, 137 Wash. 530, 243 P. 5, in which case the error originated.
The opinion describes at some length an accident in which Webber and his bulldozer rolled down a bank while he was in the employ of the MacDonald Building Company. I take it, however, that the recovery granted the appellant widow is in no way predicated upon that happening, since later in the opinion the department's action in charging the award against the cost experience of the respondent Atkinson Company is approved.
The error in the instant case, as in most, if not all, of those it cites as precedents, is simply this: Recovery is allowed, although there is no evidence of "a sudden and tangible happening, of a traumatic nature, . . . occurring from without, .. ." It so happens that, in this case, the necessity of such evidence to warrant recovery is greatly emphasized by a fact thus stated in the opinion:
"All the medical testimony is to the effect that Mr. Webber might have died from heart disease at any time, and that his death actually resulted from the fresh blood clot, or thrombosis, in the coronary artery, disclosed by the autopsy." *Page 591
This is reiterated later in the opinion:
"In view of all the testimony, there can be no doubt that Mr. Webber had a bad heart condition, and that his death might have occurred at any time."
The result of the opinion is, nevertheless, justified by the many precedents cited in its support. To overrule such an array of decisions, uniform over a period of sixteen years, is too much to be expected of any court. If the error is to be corrected, it must be done by the legislature. If it attempts to do so, it will find it somewhat difficult to unmistakably indicate its purpose. As pointed out by Simpson, J., in his dissenting opinion in theMcCormick Lbr. Co. case, at 7 Wn.2d, pages 62, 63, the 1927 legislature attempted to avoid the effect of the holding in theFrandila case by amending the definition of "injury" to read as follows:
"The word `injury' as used in this act means a sudden andtangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom." (Italics mine.)
This definition, as formulated in 1927 was reenacted in 1929, and has ever since remained a part of the workmen's compensation act. Rem. Rev. Stat. § 7675 [P.C. § 3470]. If it does not, as it now reads, exclude deaths by collapse, of persons liable to drop dead at any moment due to a long standing and progressive disease of the heart, unless and until it be established that such collapse was the immediate and prompt result of some "sudden and tangible happening, of a traumatic nature, . . . occurring from without, . . ." it would seem difficult to formulate a definition that will. *Page 592
ON REHEARING. [En Banc. May 22, 1943.] PER CURIAM.
Upon a rehearing En Banc, a majority of the court adheres to the Departmental opinion heretofore filed herein.