On Rehearing
[En Banc. July 5, 1951.]
Per Curiam.— After the filing of the Departmental opinion in the above-entitled cause February 23, 1951, the respondent department of labor and industries filed a petition for rehearing, contending that, without a statement of facts, this court should not review the decision of the superior court, citing Guffey v. Department of Labor & Industries, filed March 15, 1951 (postp. 236, 229 P. (2d) 321), and other previous decisions of this court.
The petition for rehearing was granted and the case reheard May 29, 1951, before this court sitting En Banc.
*81After the granting of respondent’s petition for rehearing and before the case was reheard En Banc, the appellant filed in this court a supplemental transcript showing that September 14, 1949, the appellant had filed in the office of the clerk of the superior court for King county his proposed statement of facts. The fact that such proposed statement of facts had been filed was not before the court when the case was first argued, nor was that fact referred to in the briefs or oral arguments of either party.
The statement of facts filed September 19, 1949, and presented to the superior court by respondent, was a proposed amended and amplified statement of facts which was accepted by both parties and certified by the trial court September 28, 1950. This statement of facts was the only one before this court when the cause was argued before the Department and was the statement referred to in the Departmental opinion filed in the cause.
The judgment appealed from was signed by the judge of the superior court who heard the cause and filed June 17, 1949, and appellant’s proposed statement of facts was filed in the office of the clerk within ninety days after entry of the judgment.
From the record before us at the time of the argument of the cause before the court sitting En Banc, it appeared that the statement of facts certified by the trial court was an appropriate portion of the record and that it should have been considered by the court and should not have been stricken.
From this statement of facts, it affirmatively appears that a certain portion of the departmental record and transcript was read to the jury, and that objections to the evidence before the respondent department were not renewed or again offered by either party.
It is accordingly ordered and directed that the following portion of the Departmental opinion be stricken and not printed as part of the opinion in the Washington Reports:
“The record contains a statement of facts signed by the trial judge, which recites briefly the proceedings before the superior court. This statement, which is also referred to as *82a ‘report of the trial of the above, entitled action,’ was evidently prepared by the attorney general representing the department, appellant’s counsel having acknowledged service of a copy thereof September 19, 1949, the statement having been filed with the clerk of the superior court for King county on the same day. As this statement was filed more than ninety days after the entry of the judgment in the cause, it cannot be considered in connection with the appeal now before us.
“The ‘certified joint board record’ which was presented before the jury and' the trial court, and which contains all the evidence introduced before the joint board, is before us as part of the record. Boeing Aircraft Co. v. Department of Labor & Industries, 22 Wn. (2d) 423, 156 P. (2d) 640; Cabe v. Department of Labor & Industries, 35 Wn. (2d) 695, 215 P. (2d) 400.
“Appellant’s testimony has been referred .to, supra.”
The court adheres to the Departmental opinion as so amended.