ON REHEARING [En Banc. June 16, 1931.] After the filing of the Departmental opinion in this case, theAttorney General, as amicus curiae, on behalf of the department of labor and industries, filed a petition for rehearing, suggesting that a pertinent statute of the state of Washington should be considered by the court in determining the issues presented, and praying that the case be reheard by the court sitting En Banc. Respondent also filed her petition praying for a rehearing, and the petitions having been granted, the cause was reargued to the entire court.
Section 19, chapter 28, p. 96, Session Laws of 1917 (Rem. Comp. Stat., § 7693), reads as follows:
"Inasmuch as it has proved impossible in the case of employees engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce, and in maintenance and construction of their equipment, to separate and distinguish the connection of such employees with interstate or foreign commerce from their connection with intrastate commerce, and such employees have, in fact, received no compensation under this act, the provisions of this act shall not apply to work performed in the maintenance and operation of such railroads or performed in the maintenance or construction of their equipment, or to the employees engaged therein, but nothing herein shall be construed as excluding from the operation of this act railroad construction work, or the employees engaged thereon: Provided, however, That common carriers by railroad engaged in such interstate or foreign commerce and in intrastate commerce shall, in all cases where liability does not exist under the laws of the United States, be liable in damages to any person suffering injury while employed by such carrier, or in case of the death of such employee to his surviving wife and child, or children, and if no *Page 483 surviving wife and child or children, then to the parents, sisters, or minor brothers, residents of the United States at the time of such death and who were dependent upon such deceased for support, to the same extent and subject to the same limitations as the liability now existing, or hereafter created, by the laws of the United States governing recoveries by railroad employees injured while engaged in interstate commerce."
By chapter 84, p. 98, Laws Ex. Sess. 1925 (Rem. 1927 Sup., § 7693), the foregoing act was amended so as to limit its application to the "employees of common carriers by railroad, engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce," etc., the effect of the amendment being to limit the application of the statute to the employees of such railroads as are common carriers.
Respondent based her claim in the court below and in the first argument before this court solely upon the ground that appellants, at the time of the accident which resulted in the death of her husband, were engaged in interstate commerce, and that therefore the cause was within the provisions of the Federal employers' liability act, and that that statute alone was applicable, every possible remedy under the state laws being excluded. Respondent's position up to the time of the filing of her petition for rehearing is clearly stated in her brief as follows:
"The appellants seem to be laboring under the opinion that the respondent in this case had a choice of two rights, either of which she might pursue, but, as we have endeavored to state heretofore, it is our contention and our theory that she never had but one right, that if the appellants were engaged in interstate commerce, then her cause of action existed solely by reason of the Federal Employers' Liability Act, and gave rise to no right under the Workmen's Compensation *Page 484 Act, or any state statute, either in accord or to the contrary."
[2] It appears beyond question from the evidence introduced at the trial — there being no evidence to the contrary — that, even though appellants occasionally hauled carloads of lumber which later became interstate shipments, respondent's husband, at the time of the accident which resulted in his death, was not engaged in work which was in any way connected with hauling any such freight, nor was he then participating to even the least extent in interstate commerce. This court, therefore, held, in harmony with abundant authority, both Federal and state, that under the record before us, respondent was not entitled to maintain her action or recover judgment under the Federal statute. On this point the Department opinion was right, and the same is hereby approved. That opinion, however, in view of the state statute now brought to our attention, does not dispose of the case, and a further examination of the facts and the law applicable thereto is necessary.
[3] Under the section of the workmen's compensation act above quoted, and the amendment thereto, if a common carrier by railroad is engaged in both interstate and intrastate business, its employees engaged in intrastate business do not come under the provisions of the act providing for compensation; but there is thereby created as to them a statutory right of action practically identical with that which the Federal act provides for employees of railroads engaged in interstate commerce.Spokane Inland Empire Ry. Co. v. Wilson, 104 Wash. 171,176 P. 34. The operations of the logging railroad with which we are here concerned were confined to Snohomish county. Under the evidence contained in the record now before us, a trier *Page 485 of the facts might find, in regard to the nature of the railroad's business, (1) that the railroad was a private intrastate carrier (State ex rel. Silver Lake R. L. Co. v.Public Service Commission, 117 Wash. 453, 201 P. 765, 203 P. 3); (2) that it was a common carrier engaged in intrastate business only; or (3) that it was a common carrier engaged in both intrastate and interstate business. It is evident that reasonable minds might differ on the facts as to the proper classification within which the railroad should be placed.
[4] It is not denied that the department of labor and industries, long prior to the accident which resulted in Mr. Kidder's death, determined that the logging railroad for which Mr. Kidder was working was within the purview of the workmen's compensation act, and therefore under the jurisdiction of the department. Appellants contend that respondent is estopped from maintaining this action because she submitted her claim for compensation under the workmen's compensation act to the department of labor and industries; and the department having found in favor of respondent upon her claim for compensation, she then elected to accept from the state the award made in her favor by the department under the appropriate provisions of the workmen's compensation act. In other words, appellants contend that respondent requested the department to make a finding that the logging railroad was a private carrier, and that when the department made such a finding in respondent's favor, that finding is conclusive upon respondent, and she cannot now claim that the railroad was a common carrier and maintain this action under chapter 84, Laws Ex. Sess. 1925, above referred to.
It appears, as above stated, that many years ago the logging railroad in question was classified by the *Page 486 proper state officers charged with the administration of the workmen's compensation act as coming within the provisions of the act, so that its employees, in case of injury, were considered to be entitled to compensation under the statute, and appellants were, under the act, assessed from time to time the statutory percentage upon their payrolls.
Respondent, soon after her husband's death, and, as it appears, acting under the advice of counsel, presented to the industrial insurance division of the department of labor and industries her claim for compensation for the death of her husband. This claim was by the department considered and allowed, the department finding that Mr. Kidder came to his death
". . . in the course of employment within the jurisdiction of the division of industrial insurance on or about the 24th day of March, 1927; that, at the time of the injury, as alleged, the workman was engaged in work within the jurisdiction of the division of industrial insurance,"
and respondent was awarded the sum of $5,911.75 (payable in monthly installments of $35), and $150 for funeral expenses. This latter award was paid and accepted by respondent, and the monthly payments were accepted by her from June, 1927, until a few days before the trial of this action, which took place during the month of October, 1929.
Respondent, after her husband's death, had available to her a choice between several remedies. She might have sued appellants, as she did, claiming that she was entitled to recover under the Federal statute; or she might have sued them under the state statute above referred to; or she might have claimed, as she did, an allowance under the workmen's compensation act. Of course, the right that was actually available to respondent depended not upon her choice, but upon *Page 487 the facts, and appellants claim that the successful exercise by respondent of her right to claim under the compensatory provisions of the workmen's compensation act precludes her from maintaining an action against appellants, either under the Federal or state law.
Respondent, in her brief, maintaining the position which she has assumed throughout this case that her cause of action comes within the purview of the Federal act, argues that her right to any recovery depends upon the establishment of the fact that the logging railroad was engaged in interstate commerce; and that, this point being in serious dispute, she could not be required to make an election as to the remedy which she would pursue until her rights under the Federal statute were judicially determined; and that, in so far as the Federal act is concerned, respondent is not foreclosed from asserting her claim thereunder by anything she did under the state law. This court having now decided that no right under the Federal act existed in respondent's favor, the effect of respondent's conduct, in claiming and accepting compensation, upon her right to sue under the state statute must be considered.
[5] The appropriate division of the department of labor and industries had the power to make a finding of fact, first, as to the classification of the logging railroad; and second, as to the rights of respondent under her claim for compensation. Such findings in proper cases become binding upon all parties concerned. 34 C.J. 878, § 1287; L.R.A. 1916A 266.
We are satisfied that, by her conduct and by the adjudication made by the department upon her claim, respondent is estopped from maintaining this action under the state statute above referred to, and that it *Page 488 must be held that she is limited to the remedy which she sought by way of a claim for compensation, her rights under that branch of the statute having been definitely and finally fixed and determined by the proper officers of the department. No appeal was taken from this adjudication, respondent accepted the benefits thereof, and the same has become final. Granting, as argued by respondent, that, if she actually had a cause of action under the Federal law, it should not now be held that she had lost the right to pursue it by asking and accepting benefits under the state law, a different question is presented, now that it has been determined that she never actually had any right under the Federal statute. That statute is, of course, exclusive as to cases which properly fall within its terms; but, since it is not applicable under the indisputable facts of this case, respondent's right is governed by one branch or another of the workmen's compensation act.
We are clearly of the opinion that respondent, by her conduct in proceeding under the compensatory provisions of the act and asking for and accepting a departmental finding in her favor under those provisions, is now estopped from proceeding under the section of the act above referred to and from claiming that her right lies under that section and not under the sections providing for compensation. Rem. Comp. Stat., § 7697; Gaffney v.Megrath, 23 Wash. 476, 63 P. 520; Samuels v. Harrington,43 Wash. 603, 86 P. 1071; State v. Bayles, 121 Wash. 215,209 P. 20; Anderson v. Bauer, 146 Wash. 594, 264 P. 410;Chicago, R.I. P.R. v. Schendell, 270 U.S. 611; Dennison v.Payne, 293 Fed. 333; Holmes v. Henry Jennings Sons, 7 Fed. (2nd) 231; In re Famous Players Lasky Corporation, 30 Fed. (2nd) 402; Williams v. Southern Pacific Co., 54 Cal. App. 571,202 P. 356. *Page 489
The judgment appealed from is reversed, with instructions to the trial court to dismiss the action.
TOLMAN, C.J., PARKER, MAIN, MITCHELL, and MILLARD, JJ., concur.
HOLCOMB, J., concurs in the result.