si0 Wash ig PACHFYO REPORTIER, 24 SERIES ‘Twice in the courte of the proseesting atomey's argument he advised the mex bers of the Jury that appellant cosld not be eonveted unless they believed the wit- ese, Willams, He called their attention Eewise, defense counsel several times Called the jary’s attention to instruction No.7. in this short teal involving rel {Seely simple sees, whore the insteuctions Nicre so explicit and. were repestedly re- erred to in the argemunts, we do not 8 Iieve thet the prodowting atormey’'s sate: tment here in question, although incoreet, Consilaed prejudicial ercor. [11-13] In addition to considering, in- aiviually, these various statements al feged to conatitite misconduct, we have ito considered their cumulative effect. Ta tig connection we take note ofthe fact thet, throughout the examination of sit. neates and the argument, appellant's com Te repentcdlyHnsinated that appellant was being prosecuted only Because he was & prominent business man and that Wilises stbed wader theate of arrest and prose Setion. Wiliams was called “petty toot Tere was no evidence in support of 21 of there inferences. When defense coon San without support in the record, cas ineuenges upon the good faith and. faie- hese of police and prosecuting oficial the provoention may exewre statements By {hy prosecuting ettorney whic would not btherwise be permissible. State v. Wright, 37 Wash, 304, 166 P. 645; State v. Van Liven 24 Wash24 261, 163 P24 600. ‘What eonstitutes misconduct depends upon the civewstanets of each ease. Stale Hart, 26 Wash2d 776, 175 P24 944. We fagree with the tral court that the state ments made by te prosesutor inthis ast, considered indiviéwaly or curate ‘Goel, aid nor eau in prajodie requiring ‘Appellants sevenih assignment of error relates to the astion of the tril court i Trersaling an objestion to a question a& Trading, Sid in refusing ¢0 mike the an~ Sect af the witness, "We have examined the testimony in- question, and conelade that the question and answer were proper fd in any event, were not prejudicial ‘ppelian®. [14] We find no error in the tral courts cefusal to give appellant's requested Sonructions Now, 10 end. 11. These re- (quested instructions related to the weight ote attached. 10 witness Wiliams tese timony in the event such testimony was igen, berause of fear of prosecntion of promises of immunity. The court's in Etuctions Non 6 aad 11 adequately ie Seveted upon the aw of abi the law of accomplices, and ‘upon the law as to the fgeveral manner in which the jury should Sreigh the testimony "The judgment az t count Tis afr. ‘rhe julgment as to count TE is reverse, Gnd the cane remanded for anew trit fon that cout ROBINSON, MALLERY ond HILL, Ti, eowenr SIMPSON, ©. Jy concurs inthe rest Serome corto Sst Jan 62080. Wash an fn the prosecution, Bot that dafendsnt was Sinan, CJ, dissented, 1 witeesen €=108@) in prosecgtion for larceny of autor robile, state providing that neither his and ‘nor wife, shall testify against the ther without content ofthe other 38 £0 “communications” made by one tothe wtker, did not render inadmissible tent Tmon? of defendant's former wife as t0 date of hee marriage to and divorce from defendact, that name used by fer i ap plying for Heense plates and certfate 0 ‘ile for automobile in. question was not her true name, and that at time of 27 cation the and defendant did not live at address. given in application, Rem Rew ‘Stat, § 121, sab ‘See Words sod Phonics, Permanent ida, for other jada ennstraetoue 2 Witneses e=183¢2) ‘The privilege established by statute providing that neither husband nor wife shal testify againet the ether without eon fent of the ofer a8 €9 "communistion®” {ts of the her spouse, but there are ci cumstances under which testimony a9 to fan act of other spouse is leary protected, fe where the set is one whieh would not Ihave been done by ane spouse inthe pres ence of, or with the imowledge of the ‘other but for the confidence between them by reasoa of the marital felon. Rem Rev Seat § 1214, 2ubd. |. witnesses 160) "The term "sonumunieation” within seaning of privileged communiestion rule, fs to husband and wife, ehould be given a Teral construction and is not confined 49 mere suible communications or converss. tions between the spouses, but embraces all facts which have come to bis or her i in consequenes or by reason of con Fence of marital elation, snd which, but or confidence growing obt of i, would ‘ot have’ been) frown. RemRévStat. § 1214, sb, 7. 4. witeeses 62109) In prosecation for grand larceny of automobile, state providing that neither Inusband nor wife shall testify against the ‘ther witht content of the other as to “communications” made ‘by one 10. the other, endered inadmiisble testimony of Aifendan's former wife that defendant waited in astomotile for her while she ‘went to apply forlcate plates and a ce Uiheste of te for automobile, Rem Rev Sut § 12H, subd 1 1B, wataersn 1000) ‘State providing that neithte husband nor wife shall testify aguinet the other without consent af the other as to "eam ‘uniatins" made by one tothe other does fet preclude sdmision of testinony af {0 Witness! own acts merely because ju57 might infer therefrom 2. communication Detwees fusband and wife, Rem Rev Sst $124 bd e07, $64,367) ‘The “interes” roferred to in sttate providing that no person offered aa 8 wit ence by reaton of his “overes” sn the fvent of the action, az party thereto otherwise, Sut tht such “interes” may Be Shown to. alfest bie credibility, means direct interest in the outcome f the iti fgition, and test ie whether witness will Bein or lose by a direct legal operation nd fect of the judgment. emer. Stat. § 12 7. wines €=972) Tn grand lasceny prosecutioh, whersin mer wife of defendant testified for the sate statute providing that no person of fered as witness shall be excluded from Eiving evidence hy reason of his “interest {ithe event of the action, as x party there fo or otherwise but auch “interest” may be shown to afect hls credibility, did not Authorie defendant t cross-examine for-ary Wah 218 PACIFIC REPORTER, 2¢ SERIES rer wife with respect to her alleged rela shonld have been permitted, for: purpose Meee ie anotker man while defendant of showing biaw’on part of former wife, enti uray and while she wae sil t0 cross-examine et’ af to ber alleged re- Mainea to defencant. “RemRewStat § lations with another man while defendant ait twas in the army and while she was stil t vntnemes 0740) tnatried to defendant. ‘On ceoss-examination of « witness, it ia competent to ect fae which tend to 1s coat jodie or frientsip of it~ Gtotge Ha Grande Seattle for appel fest for the purty for whom he testis, 888 nd to show hostility toward the party Cha fesinst whom Re is called ©. Carroll, Burton S, Robbins, Seattle, foe Fespondent 2, Criminal law E=1170%5(1) . _ Mitoenes o=5720) HAMLEY, J i A co ccoss-excmine wit. _At tis trial upon a charge of grand lar~ es ta order to show bias is reversible cen invaleiag-the theft of-an-aitomotile bls GEtesdant soaght o exclude the adverse festimony of ins Tormer_wife, When un- 10, witneites €=3720) ‘Geester- 7TH he rough to crossexain— "Where right to eross-extmine witnes= ine her with respect to her interest or bias to.show bits rit sltopether denied, scope He was not permited to Zo 0. Hle was Ge extent of crose-examinaton fests in convicted, and judgment and sentence were Sound aisreton of trial court. fered, He hae appealed 1h Witneses £29720) The only question presented om this ap- ‘Crostesamination of witness in order peal is whether the teislcourt erred. in to show Sas io not strictly hinited to sim- gan to-eitbet af. these rigs ‘le question of whether hostility exists, We will cmt comsder whether the texi- nd, within reasonable limite, witness may” miny of appellant’ former wife ought to ig aw he tae ad te fe ele year te came serged Thr combined va wares entry many toned to chow rt appellant. vias aH eg nts in ors Jaen Hbbis, alias Janes Drisol se Cramreraminaion oft wines In 2 ed nln 4 1982 Pontiac eutomoie be dee So Beto Sw nly fee oosng to Mese D. Cain: od ered Stary tena to ahow ne eer santero corespond to tat of sneer Pontiac. aut owned, ty Io witness e720 SURN"amerna, which ad’ bon totally 2a nen etal and Tt of the wrested Porte tim the wes ay Be exgadd Eclat from Jar Decl va writen expend We scetor ‘Tite J RabbinsOné of these wit cx beet Se Reece ening Sec ele fora Pome ater ar hs a pte, in whieh Ralph Alberthal was lst- a rea the former ower si the ota num geige creme Ge ial court 18 ie ofthe Alberta sutomebile was eres She sqetion 86 Siappeton wad sued Taney Drs ita, how Sap ee et i otor JneDrial” “ee ‘and conclode armyay subd Si Fo Bate Se ORS i is a oa Sean Sle ate (he misspoke ia 4 Eis as 1946— whether Driscoll had acquired ttle to the SCT he MEMES nee ToS stl 2 ow ey aioe Sina Specie ce er oa The divorced. hit 7 thats in ncwledge. 7 The state thea wile, Be. Geral carding thie app fion of sppellns ted in'the "This lenves for consideration the admis: ofc ibity of the saement Sata apps Fee and tage wate ithe antmobie for Ray the aoplied for heense feate wits went Yo a0 ofice ir We Coin sbi for & Pont eatly- Cy baldig: Tr Seat and wpe for og the application fox intro- gis later-ent erioete oF fot duced in evidence, SEoniee automobile, sgnig "J fled); “that she i ‘all By Geis) Mes Jone Deal” "James Driscoll 3 TH, 2if/ The stteieat thak splat wae Dries wang ouside fa an astomatle was to name but was her fa Enony as to an act ofthe other monte, aa tie time she aad iesingaithes rom enone ar Sra ot tie at the ade or writes couimaniaton: “TRE pegs Dikcation; and at ‘GESMIGRE Bye sme doer not onde Iter “James, Drs Stsly exe to testimony gorardng the ued tile to the ato cs of the eter spoue/f Wigmore 08 ‘Aberhal named a th ‘Gries, STEL, vo. VIN, § 287. For former over ccample ia prosesion forthe erie of Covered her thea husband the aed of Sexsalntrcourse wth her daughter, the complsning witness State. Sobder, $4 Wath 485,197 P. 38, Liki, ina ur der promcation, » wife wan permitted to festly thet ate sincovered her husband fomping some object into» ole in which the dectared's body was found. Saith follows hasan for oF agains his teat ofthe wile, 2 hashend;. nor sll tr afterards, her, be exo ‘iow made alg State, 198 Ind 15,152 NE. 3 | ore {3} However, there are cceamatances under which testimony as to an act of the ‘other spouse ie clearly protected ‘by Hlor a crime committed. he statutory privilege, here the act i other”. (Italics ots.) Ge whieh would not Nave bean done by iis question consists of a one epose inthe preseuce of, or with @ iMjuarate stavoments. Several knowledge of, the other hut for the con gebe dismissed fom consdees- dence between them by reason of the reason that dy did net im- marital relation, teatimony as to such act son which came to the wit- je indiiasitl/See the very fecent cast ‘of any communieston from of Menefee . Commonwealth 189 Va. 80, Tou were facts at all Umes §5 S.E2d 9, where the cases and author ben Inowledge, OF thie kind ties are diacuised at Tength- The cule Js dhiony regarding the date of stated as follows in 70 C.J, Witnesses, p ‘divorce; that “Driscoll” was 388, § 520; "The term ‘communication’sik Wass within the mesning of the privileged com- Tunicaion rule, ag t0 Busband and wile Should be given a liberal eonsraction and is not confined to mere audible commasi- cations or conversations between the Spouses, ut embroces all facts which have come to his or ber knowledge or under his fr her observation in consequence ot by Feason of the confidence of the marital r= Tesion, and which But for the confidence roving out of i would aot have been frown. Tt includes knowledge communi= fated by an set wach would not have Been done by one spouse in the presence of, oF within the sight of, the otfer, But for the confidence Between ¥ ‘yy reason of the ‘marital relation * (4). Te might at Gat be supposed that appellants act of waiting im an astomebile in sight ofall ona public thoroughfare, was fot an act dane in reliance upon the con Fence eatebliched by the marital relation, He was apparently willing to be seen by the publi including’ acqusintances who i sight be passing by. The reason he was hot afraid of Being seen by the general public, howeves, wae that it was anlkely That this would result in connecting a> Pallant with the transaction then Ging place inside the building. But hls wi Tan's connes sot have waked ia fot relied upon” tHe condense between {fei by. Hasoa ‘of the mat Feubor "The testimony of the witness a tap. plants act of wai danse, Ve ranch diferent conelasion with ct 10 the ites” testimony that she GapptisDfor tenes plates and a. cersfente Stille, Disnsrocated. fom her farther {eau that her fustond. was waiting futsde in the cat, her statement that she fDade-thic anolizlion wag telitnony con wn ace Te as et Fad tected that she was husband to fle the 22° wld have been testimony oo td wide a or oe “re ane ‘Stine tested ha seca mame. Fro Neb ee i ftac ars Fs oud ty seo Bic Sie dd mt Bg any pre oe he tel cot ead Baines eineny rele Mei wo of wating te PAE cosine of er es Eee 7 Reb ccon Cotter he sat a oe eg at 8 SRE Bs tat ere pesme wens" pe wea ome icine sated ht ail eh ed Seen ie EPO soroninetey yerend © deere at ‘ies Se ae eae tee er Begg om cen ‘ikea wheter, SE MEME Sprclane wh tee ete pp: ed Thee ey spel EERE ome She id ened ett wr teat weal sae a oan a Tete abcace of the ig sheh Sere to pore te AU ae Teen ore ere A PDT tcane megege ead he wines tae eee cu of Re gree‘STATE y. ROBBINS: ‘Wash. 85 from the army, he found the witness ina aparsnent living with another man; and that the “recoed in Judge Hosr's court it show the arrest and the disposition of Wis ease” The trial court rejected this offer of preaf Appelist contended at the trial and be fore this court that he should have been permitted, as 2 matter of right, to eros feamine the witness as to there matters, in view of RemRev Stat. § 121), the fist clause of which reads aa follows: “No person offered as a witness shall be exe ‘Saded from giving evidence by reason of| his Intereat ta the event of the action, a¢ party thereto of otherwise, but such ie ferest may be shown to affect his cred Sty Fe (6.7) This isthe eovaed “dead man” statue, a is usually applied only in cases involving deceased persons, though not al ways 2. See Hanford y. Gochry, 26 Wash24 859, 167 P24. 97%. The “ine terest” referred to in this ‘statue, how ‘come ofthe litigation, the test being wheth fe the witness will gain oF Tose by the Aire legal operation and effect of the jdgmene In e Sloan's Estate, 50 Wash 36,96 P. 64, IV LRAWNS, 960; Walker te Estate of Tate, Wash, 201 D.2a 182 ‘The purpose ofthe crosexemination here fin question was act to develop the ex fstence of sich an interes. Accordingly, the state referred to above does not P- By. Appellant also argues that, independent of the statute, this crosi-ecamination ‘hould have been permited for the purpace of showing bis. [8] The governing. principle with ce ‘gard to erosrexaminaton for the purpose Sf showing bine f stated in §8 Amar, ‘Witnesses, 385, § 715, a5 follows: "Tt i competent, on cross-exeminaton of 2 svitness, to fit facts which tend to show the bss, prejudice, or friendship ofthe wit sess for the party for whom he testi and to show hostility toward. the party against whom he is calle This i em Srely diutince com imposeliment, which is governed by its own rule of evidence ssexamination Tor this purpose ir @ attr of right, an the devia thereat may constitute reversible error. This ie not ¢ collateral oF imniaesial matter within the le limiting crose-examinaion to matters Felevant to the Sense” "(Halles ours) [S41] This court kas recognized that such crossexamination is a mater of Fight. Perry v. Cy of Centralia, 50 Wash, ©, 97 D802. Where a party has been nied this right, we have not hesitated tovreverse. State v. Bald, 55 Wash, 202 104 P. 275,33 LRAWNS, 946; State v Beaton, 105 Wash. 23, 160 P. 146. This accords with the general practice through fut the county. 70 Cy, Witnesses, p 988 ct son, &§ 1165, 1170, 171. Where the Fight is not altogether denied, the stope of extent of erose-examination for the purpose of showing bia rests in the sound discretion of the tal coart, Wile Tian ¥. Spokane Falls & NR. Co, 42 Wash. $97, 8¢ P. 1129; Stale v. Henry, 143 Wash. 39, 254 P. 460; State w. Linde, 171 Wash, 92, 17 P24 635; State v. Ten by, 172 Wash, 131, 19 B24 661; State v Robinson, 24 Wash24 909, 167 P.2d 996 1e is generally recognized, however, that the inguiry i8 not strictly’ limited to the ist, but that, within reasonable mit, the ‘witness muy’ be interrogated a 10 p8r= cular facts ending to stow the nature and extent of the bostiity. State w. ene 112,13) ‘The wal cour, of course, may ccamrtancer sought to be shown only ce rmotely tend to stow biss, State x. Hay ‘mon, 21. Wash24 58, 152 P24 31¢; 70 CJ, Witnesses, p, 948, § 119. Likewise, wawarranted and unfounded relections Upon the veracity of the wines may be ‘excluded, as where be ie kel, without any basis for the inference, "How such fhave you been paid. for the testimony bhere?” Chapman v. Rose, 138 Wash. 26 247 P. 708, 710. It has alo been held that where the Jory is alvendy well advised as to the nature and extent of hostility, the oust tay, in ie ceredon, reject euchm6 Wan aus pacirio REDON, 24 SIE crowt-examination. 70 CJ, Wiese, ‘| Sot ir, LINDSEY », DEPARTHENT OF LABOR 1 (08). The general erebity of a wit Ora j ‘ness cannot be impeached by proof of par- ter $1126. tian cts of rcondect,” State Go Sugrome Cuetof Westngton, ey, 181 Wath $95, 278 P73, 6 AL. Depart 1 18; State, Thon 8 Wash 878 13 Dew it 00 1 P24 7h. Here, however, the. ofered i crosscxaminaion was nots isteated, bat_ P74 Lneey Wrought a promating ener 4 seus for the purgone of showing thatthe, Wovktn's Compisation As. 4 ‘witness was prejudiced against this par- From & Judgment of the Superior Court, Tula eppetant. The wansacion oat of SWtslt Gust. W_1 Brishy, 3, ons Jory= Which such bias or prejudice fs asserted fo. Tra nding thet claimants tt | Sorngappee to Involve the alleged me Soc toa ae 2 Conduct of the witness But ths should Departaeet af Lalor od iota oe ‘ot deprive appellant of the opporttity of pete, i Proving that transaction and resaant bias "he Supreme Onur, Ti 7, atlomed the H {te is otherwise entitled todo Judgment holding’ that the evidence sup. [15] We are of the view that ig ror. Ported th vorlet and tht the Departs } Jecing the entre ofer of proof ab to ap. =U ating in Cal for the orignal tn. \ Pelactinitng 0 cena pence ety Cine ot eno Meno ‘against the witness, appellant was denied a at thers ‘wes no Alec subject ac, fubstantial "right of cross-examination. gravation or that the statutory” lmietion The circumstances sought to be developed of sme fo application to rondjst the com con ceoss-examination would tend to show peastion rate tesasse of aggravation of te Intense hostility far exceeding the bias or SlaDity applied prejudice which may have been established by reason of the proven divorce procaea- "Mortars oompenttion 1834 ‘amount of bias or hostility shown to exist. pig ates reat 2. Workmen's compensation 19 A physicians statement in fle of De i the weight to be atached to Ber tenon. i i We doa anlerae wo ey hw ces: fries of Later end Tey came five 2 croseexamination should be pers % considered by Supreme Court in de I See eee erry aa PS PE termining question of causal relationship | Ua court in the exercie of sound dine DtWESA employe’ fjany and stoke re it tel com te ems of sud di Singin fla permancat dabiy on ap peal front superior court's jugstent on Jury's verdiee Sading suck disability at Uributable 2 injury, where such physician ‘ed not testify before joint board and his report in departmental record was not be The mere closing of workmen's com SIMPSON, C.J. dissent pensation claim with only time lose and i examination should act have been skogeth= er rejected ‘The judgment is reversed, with inseve sion to grast appellant a eo tral ROBINSON, HILL, and MALLERY,LINDSEY, DEPARTMENT OF LABOR &INDUSTHIES Wash 317 no finding of claimant's continuing dis Sbaity by, Department of Labor and In fsties did not lar his recovery of com pensation for total permanent dasbilty on ERtsequent showing tht orginal disability, warranting payment of ime loss, was ag ravated to such extent 22 to impair claim Shve earning. capacity, thoogh orginally Geemed to have Been terminated when ‘him was close, ‘The closing of workmen's compensie tion claim with time Toes only as not res Jucleata thot claimant was not dieabled at such time or that eatstory’ ve year Him tation of tne for application to readjust Compensation rate becntse of aggravation ft disability applied. RemSuppi9H7, § 767008). Soith Troy, J. Arsald Cobley, Olymri, for appellant Walthew, Gershon, Yothers & Wart Seatle, for rempondent WILL, Justice. ‘This ian appeal by the deparment of labor and industries from a jedgment en- fered on the verdict of Jory Abang hat 2 Gaiman's total permanent dieabiliy wa feuributable to an injury which occurred fn Day 6, 1943, in the course of As em (On that dite, the, caimnt struck ie right thigh agnines a see! projection. His Claim was closed on August 9, 1943, with even days’ tine loss, There was no Pro> teat or appest, “On April 19, 1944, he su fered a atrle which resled fm the paraly- fr of the right sde of his body. Tt seems to be undispated that he is now totally and Destnanenlly distleg, the qsestion being Whether there war a caus! relationship between the injury of May 6, 1943, and the total peemanent. deabilty ‘The department, as appellant here, pre= sents a question of {ae and several le ‘estions On the facts the question ¥s, Was there substantial evidence to sustain the verdict? Oneill v. Department of Labor & Industries, 21, Wasi 2d 634, 152 Bod ors. [1]. The doctor under whose care itimant ha ‘beea immediately following the injury but who did not seein there= ffter unit May of 1946, testined that, from his personal ciservation, there was a ‘thrombopilebtis in the thigh as a conse~ quence of the injury of May 6, 198, and at it was his opin from a desrip- tion of what eubrequenty Happened 38 de- tailed by the claimant, cat an embolus, oF clot, small enough 10 pass through the heart and. Kings, broke of” from. that thrombus and Snaly Todged where it ext fff creation to that part of the brain ‘controlling the right side of the body, re Siling ia the stroke and the cul dis ftilty, "Two. doctors called bythe de- portent tectifed that that could not have happened, and thas they could see o cat Felationsip beoween the injury of May 6, 1943, and the sake “The jury believed the claimant's doctor, od we are not able to say, as we did in ‘Toakovish vy. Department of Labor & Ine diasties 31 Wash2d 2,195 P.2d 658, that the testimony of the claimants doctor was Ntamistaaiy erroneous” There was substantial evidence, including objective tridence, of the existence of thrombo ict of the jury. See Knowles ¥. Dex partment of Labor de Industries, 28 Wash. 2a97, 184 P21 $91; see, also, annotation on "Sulficiency of expert evidence to ec {ablish causal enti between accident and Diysieal condition or death” 135 ALR. BH 2] ‘The epartinentunges upon ws that the siaemat inthe departments fle made by the doctor who trested the claimant at the ime of his stroke, in April 1944, i= Gicates Dat there was no causal relation fhip between the injury of May 6, 1943, fd the stroke in April, 1944, This doctor Aid got testify Before the joint Board and bis report in the departmental eeord was hot before the jury therefore, under our Fepeated decisions, euch evidence eanuot be ‘considered by thie court Sweitzer ¥. De fartinentof Labor & Indestris, 177 Wash Fase Pad 380; 18, Wath, 30 P21 900; Hisshinge v. Department of Labor & Tn fhustriey, 24 Wash2d 711, 167 P20 $44;318 Wesh ‘8 PACIPIC REPORTER, 24 SERIES Oipmpia Brewing Co. v- Department of Labor & Industries, Wash, 208 P24 1161 [8]. The principal question of lave selbed by the eparment is, Gan there be tn aggravation of disablliy where the ‘lsio was orginally closed with only sine lors and wo Sinding of any continuing dis- abiliy? “The depariaient relies won the language of the workmen's compenstion act rele five to ime for aggravation: “If agera= ‘ation, dinintion, or texmination of is bili’ takes place or be discovered after the rate of compensation shall have been tablished or compensation terminated, ia fey ease the Director of Labor and n+ deste, tiroagh and by means of the Di- vision of Industrial Insurance, may, upon the spplication of the beneficiary, made ‘with ive years after the establishment br termination of such compensation, oF {pon his own motion, readjust for farther SPotieation the rate of compensation in Sordaace withthe rales nthe selon pro: Wided for the same, or in a proper case terminate the payment 7 7%" Rem Sup. § 767908) The department says there can be m0 aggravation of dsabilty, a6 defined by but any finding of a then existing” dis bigs in other words, that there ean be so aggravation of a disability unless there Sra at the time ofthe closing ofthe claim, SGiabllity to beoome aggravated. The Aepartment, However, overooks tie fact that there must-have Deen a dssbilty to ‘warcant the payiaent of time lots; and the there closing of & claim without a Sing of 4 then exiting ceailty should not bac relief when the sabi, though riginally deemed to have been terminated ft the me of the closing of the claim, is thereafter shown to have been aggravated to vsuch an extent a to impair the cals S's earning capacity, A). There is no merit in the’ depart- reat claims that the closing of the claim seth time Toss only is res judicata that there wat no diesbity, of hat the one~ Year Hmitation contained fn the tates ap plies. ‘The order closing the claim stabs Tished that there fad been a dissbiiy which had eaused seven days! time loss, Efi cannot be ret judieata ts to any ine frense or aggravation of dsabiity subse fuent to that date. Obviously, if we are {eating with an aggravation of & dsailiy, the fvecyear Hation ia the portion of the statute quoted supra ie applicable SIMPSON, G Jy, and ROBINSON, MALLERY, snd HAMEEY, JJ, concur