78 W. Va. 629 | W. Va. | 1916
The Workmen’s Compensation Fund was established by Chapter 10 of the Acts of the Legislature of 1913. Section
By section 43 it is provided that “in case the final action of- said commission denies the right of the claimant to participate at all in the fund, on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant' may, within sixty days after notice of the final action of the commission, apply for an appeal to the supreme court of appeals. ’ ’
Application for payment out of this fund must be made in “due form” within six months from the date of the injury or death. Section 39. Section 8 provides: “The commission shall adopt reasonable and proper rules to govern its procedure, regulate and provide for the ldnd and character of notices, and the service thereof, in cases of accident and injury to employes, the nature -and extent of the proof and evidence, and the method of taking and furnishing the same, to establish the rights to benefits or compensation from the fund hereinafter provided for, the forms of application of those claiming to be entitled to benefits or compensation
Section 23 of the act provides: “Any employer subject to this act who shall elect to pay into the workmen’s compensation fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employe, however occurring, after such election and during any period in which such employer shall not be in default .in the payment of such premiums; provided, the injured employe has remained in his service with notice that his employer has elected to pay into the workmen’s compensation fund the premiums provided by this act. The continuation in the service of such employer with such notice shall be deemed a waiver by the employe of his right of action aforesaid. ’ ’
The Mack Manufacturing Company operated a brick plant in: Hancock County, West Virginia, and was subject to the workmen’s compensation act, and had paid the premiums prescribed by that act. Bernard Zubritsky, deceased, was an employee of said brick company. While in the. employ of said company, Zubritsky was killed under the following circumstances: He was employed by the brick company to transfer - coal from railroad cars to carts by which the coal was distributed about the plant of the.brick company. The railroad cars were placed on the side-track of the Mack Manufacturing Company by the P. C. C. & St. L. Ky. Co. In making a flying switch of a number of ears, these cars were thrown against the car which Zubritsky was engaged in unloading while he was under the car, thus fatally injuring him through the negligent act of the employees of the railway company.
The mother of the deceased was the only dependent. She was a widow living in Russia.
' The appellant here, J. D. S. Mercer, was appointed administrator of Zubritsky, and brought suit against the railway company to recover damages for the wrongful killing of the deceased. That suit was compromised by the payment of $1250 to the administrator by the railway companj1'. A
The rule adopted by the commission and then in force providing how the application shall be made by the claimant, is as follows: “Rule 11. To obtain awards in cases of injury resulting in death within a period of ninety days after the date of- such injury (see Section 33), application must be made by the executor, administrator or dependent of the deceased, or by the attending physician or undertaker where there is no dependent, within six months after the death of the injured employe.’-’
The accident occurred August'23, 1914, and this application was filed November 12, 1914, while the act of 1913 was in force. This act was amended by Chapter 9 of the Acts of 1915. By* the act as amended the office of State Compensa-' tion Commissioner was created, who succeeded to the jurisdiction, rights, powers, and duties in respect to the payment of compensation out of the workmen’s compensation fund on demands theretofore made upon the public service commission, and was given jurisdiction of all applications for compensation from said fund pending before the public service commission.
August 2, 1915, compensation in this case was refused by the commissioner. Compensation Commissioner Ott, in rejecting the claim, says: “In view of the evidence and facts in this case, the Commissioner is of the opinion that no_ disbursement should be made from the Workmen’s Compensation Fund, as compensation, on the ground that application therefor was not made in due form by the dependent of the deceased, nor by any person authorized to do so; that the injury was not received both ‘in the course of and resulting from’ the employment, and that in as much as a settlement was effected by the Administrator of the estate of the deceased, with the third party causing the injury, no compensation should be awarded from the Workmen’s Compensation Fund.”
From this ruling and judgment the appellants have appealed to this court. Joseph Yalnnichak, who holds a power
First: Was the application made by a person authorized to do so? As we have seen, application for compensation mn§t be made in ‘ ‘ due form. ’ ’ It was the duty of the public service commission under the act of 1913 to adopt rules and regulations with respect to the application to be made by the employee or dependent. Such rules were made. The rule in eases of injury resulting in death requires the application to-be made by the executor, administrator, or dependent of the deceased. This is Rule 11 prepared by the public service commission and is the rule in force at the time the application was made. Rule 10 referred to in the brief of the attorney general was prepared long afterwards by the state-compensation commissioner under the act of 1915. A blank form was prepared by the public service commission to be used by applicants. This form states that the application must be made in such cases by the executor, administrator,, or dependent. The application was made on one of the forms furnished by the commission. No objection was made to the form of the application at the time, so far as appears. The application states the name of the mother as the dependent, and gives all the information necessary to enable the commission to make an order for her use. It is true that the estate of the deceased is not entitled to this fund. The application does not ask that it be paid to the administrator as a part of the estate, but clearly shows that it is to be paid to the mother. We hold that the application was sufficient-It would be unjust to permit the commission to reject the application prepared on a form prescribed by it, and especially in this case when it would be too late for a new application. The procedure under this statute is intended to be untechni-eal in form: "Such commission shall not be bound by the usual common law or statutory rules of evidence, or by any technical or formal rules of procedure, other than herein provided, but may make the investigation in such manner as in its judgment is best calculated to' ascertain the substantial rights of the parties and to carry out justly and liberally the spirit of this act. ’ ’ Section 44, act of 1913.
Third: The commissioner held that “in as much as a settlement was affected by the Administrator of the estate of the deceased with the third party causing the injury, no compensation should be awarded from the Workmen’s Compensation Fund.” This is an important question. The commissioner cites McGarvey v. Independent Oil & Grease Co., 156 Wis. 590, as authority for his ruling. This case does not sustain the commissioner. That was a proceeding under the statute of Wisconsin, which provides: “The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer may enforce in his own name the liability of such other party.”
The case of Peet v. Mills, 76 Wash. 437, holds that the statute of that state .abolishing the doctrine of negligence as a ground for the recovery of damages against employers is broad enough to embrace provisions abolishing all rights of civil actions for such injuries, whether against employers or third persons. That decision is based upon a construction of the Washington statute.
The statute of this state does not in terms release the tort-feasor, or assign the right of action, when compensation is paid out of the workmen’s compensation fund.
It is insisted that our statute should not be so construed as to permit the reeovei-y of double damages for a single wrong. The English statute provides against double recoveries by allowing the employee to proceed against both the employer and the other person liable, but prohibits recovery of both damages and compensation. By statute in some of the American States the same result is accomplished by subrogating the employer to the rights of the employee against the tort-feasor. The West Virginia statute deals
There is nothing in our statute which would prohibit an employee who has received damages from a third person, from receiving from this fund the amount provided by law by way of compensation for damages arising out of. the same act. We must therefore rely upon principles of common law for the solution of the questions involved. It is conceded that the representative of the deceased received $1250 as damages from the railroad company. It is- claimed by the compensation commissioner that the employer was liable for damages for not having given the deceased a safe place in which to work, and that therefore the recovery and payment of damages by one tort-feasor released ‘the other. But does it follow that because the brick company would be released at common law under these circumstances that no resort may be made under our statute for further compensation out of this fund by one who is a dependent? We think not. The money recovered from the railroad company or from the brick company Avould be distributed to the parties in the proportions provided by law in relation to the distribution of personal estate left by a person dying intestate, while sums received from the compensation fund would be paid to one or more dependents of the deceased. The amount which may be received for wrongful act causing death of another is fixed by
We set aside the order of the commissioner refusing to allow compensation to Franeiska Zubritsky, mother of Bernard Zubritsky, deceased, and direct him to ascertain the amount and pay same according to law.
Reversed and remanded.