91 Pa. Super. 64 | Pa. Super. Ct. | 1927
Argued April 20, 1927. William DiLorenzo, an employee of the Carnegie Steel Company, while in the course of his employment received injuries from which he died on May 9, 1923. He left surviving him a widow, Rose DiLorenzo and three children under sixteen years of age, to wit, Mary, born March 2, 1916, Andrew, born October 6, 1917, and Nicholas, born July 5, 1921. The Lawrence Savings Trust Company is the guardian of the children.
A compensation agreement was entered into between the widow and the Carnegie Steel Company providing for the payment of $12 per week, (being 60% of the employee's weekly wage, $20) for herself and three children, beginning May 18, 1923 and to run for 300 weeks, at the end of which period certain payments were to be made the children until they should severally *66
arrive at the age of sixteen years, in accordance with the ruling in Catlin v. Pickett Co.,
On January 18, 1924, after 35 weekly instalments of $12 each had been paid the widow under said compensation agreement, she and the children's guardian secured from the Workmen's Compensation Board a commutation of $7.68 per week for the purpose of paying off a mortgage of $1800 on the home of which William DiLorenzo died seized intestate, and the weekly payment under the agreement was thereafter reduced to $4.32 which was payable to the widow for the benefit of herself and children aforesaid.
On June 9, 1924, the widow remarried, but gave no notice thereof to the employer which continued to pay her the weekly sum of $4.32 until March 4, 1925, when it filed its petition to modify the compensation agreement because of her remarriage and asked the Board to fix the amount due the widow following her marriage and the compensation to be paid to the guardian of the children during the balance of the 300 week period.
On the date of the widow's remarriage there were 244 2/7 weeks of the 300 week period yet to run, so that under the Act of June 26, 1919, P.L. 642, amending section 307 of the Workmen's Compensation Act of 1915 (P.L. 736) she was entitled to receive "for the joint support of the family" (Ferdisko v. Trimble Sons Co.,
The question at issue is how much is to be paid the guardian of the children from and after January 1, 1926, for the period of 163 weeks remaining out of the 300 week period.
Had there been no children the widow would have *67
received 40% of the employee's weekly wage of $20, or $8 per week. By reason of having three children she received 60%, or $12, as weekly compensation for herself and the children. It is clear that part of this 60% so received by her was for the account of her children, and had she neglected them or refused to apply any part of it for their benefit the courts would have protected their rights in it, which were "surely not less than the difference between the amount the widow would receive without children and with children": Lovasz v. Carnegie Steel Co.,
It would seem, then, that of the 60% of the employee's wage, or $12, so paid this widow for herself and three children, 40% or two-thirds was on the widow's own account and 20% or one-third was payable on account of the children; and, in the absence of express *68 direction to the contrary, this would apply to the weekly amount commuted for paying off the indebtedness on the home as well as the weekly balance yet to be paid thereafter; i.e. two-thirds of the weekly payment of $7.68 commuted to pay off the mortgage, or $5.12, was payable on the widow's own account, and one-third, or $2.56, was payable on account of the children; just as, two-thirds of the remaining weekly payment of $4.32 or $2.88 was payable to the widow on her own account and $1.44 was payable on account of the children. It makes no difference that the title to the home was vested in the widow, one-third, and in the children, two-thirds; that circumstance could not increase or decrease the children's share. If the widow had seen fit, by leave of court, to use the commuted payments to pay off a mortgage on real estate owned wholly by the children, but in which the family lived, that would not alter the proportion payable to her on account of the children, which was, in this case, one-third to her two-thirds.
The Act of 1919, p. 649, provides, "If the compensation payable under this section to any person shall, for any cause, cease, the compensation to the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased."
Had there been no widow the three children would have received 40% of $20 or $8 a week for the first 300 weeks. Her right to compensation ceased on January 1, 1926, andthereafter, for a period of 163 weeks, they would have been entitled to a weekly payment of $8 per week, to be paid their guardian (McGilley v. Markovitz Bros.,
It has been held that the relation between the employer *69
and the employee, or his dependents, is definitely settled pro tanto on payment of a commuted award: Hall v. Jones Laughlin Steel Co.,
The method of calculation adopted by the Referee and the court below is incorrect in that it charges against the weekly sum coming to the children after January 1, 1926, $8, two-thirds of the commuted payment, $7.68, or $5.12, which is, as we have seen before, more than the entire weekly amount payable to the widow on account of the children, $4. The fact that of the principal sum thus commuted, two-thirds was applied for the benefit of the children, is, as we have already pointed out immaterial. The proportion chargeable to each is not dependent on the advantage accruing to widow and children respectively, unless specifically so directed in the order, and then only to *70 the amount payable under the statute for their respective accounts.
The calculation adopted by the Board is still more at fault, since it charges against the children's weekly compensation, as fixed by law, the entire amount of the commuted payments, thus, in effect, making the children pay back to the employer the commuted sum paid on account of the widow, which is contrary to the decisions above cited.
The assignments of error are accordingly sustained, and the judgment of the court below is modified so as to read as follows: Compensation agreement No. 1427848 is herewith modified to provide for the payment of compensation to Rose DiLorenzo, for the support of herself and children, at the rate of $4.32 per week commuted under Section 316 over a period of 81 11/21 weeks, or until January 1, 1926, being one-third of the remaining 300 week period, which amounts to $339.09, less the sum of $155.52, which she has been overpaid, leaving due the widow the sum of $183.57; and thereafter to provide for the payment of compensation to the 3 children of William DiLorenzo payable to their guardian, Lawrence Savings Trust Company, at the rate of $5.44 per week for 163 weeks, or until the expiration of the 300 week period, and thereafter at the rate of 35 per cent. of $20 or $7 per week until March 1st, 1932, when Mary DiLorenzo becomes 16 years of age; and from March 2nd, 1932 until October 5, 1933, when Andrew DiLorenzo becomes 16 years of age, at the rate of 25 per cent. of $20 or $5 per week, and from October 6, 1933, until July 4, 1937, when Nicholas DiLorenzo becomes 16 years of age, at the rate of 15 per cent. of $20 or $3 per week.
Let judgment be entered accordingly. *71