31 P.2d 15 | Kan. | 1934
The opinion of the court was delivered by
This is a proceeding for compensation by dependents of a deceased workman. They recovered in the trial court, and respondents have appealed. It is conceded that all parties were operating under the workmen’s compensation act; that the workman sustained an injury by accident on April 28, 1932, which resulted in his death May 11, 1932, and which arose out of and in the course of his employment; that claimants áre his dependents, and that his wages were such as to entitle them to the maximum award.
Appellants first argue that the Meeker company was an independent contractor, for which reason they are not liable. Both the commissioner and the trial court found the Meeker company was a subcontractor, and the evidence supports that finding. The Neon company, by its contract with Woolf Bros., obligated itself to construct and erect the signs complete with electric wiring and con
Appellants next contend the claim for compensation was not made in time. This is the principal question on this appeal, and dates are important. The workman was injured April 28, 1932; he died May 11, 1932; both the Meeker company and the Neon company had notice of his injury and death; by agreement between his dependents and employer, confirmed by the compensation commissioner August 2, 1932, the amount of compensation, and the rate and time of payments were fixed; payments were made to December 15, 1932, when they ceased; claim for compensation was served January 31, 1933. This was more than six months after the death of the workman, but within ninety days after payments ceased. The pertinent statute reads:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within ninety (90) days after the accident, or in cases where compensation payments have been suspended within ninety (90) days after the date of the last payment of compensation; or within six (6) months after the death of the injured employee if death result from the injury within three (3) years after the date of the accident: . . .” (R. S. 1933 Supp. 44-520a.)
Under this statute we think the demand for compensation was in time, since it was within ninety days after the date of the last payment of compensation. Appellants argue that the portion of the section providing for demand for compensation within ninety days after payments cease applies to claims for compensation for personal injuries only and does not apply to claims of dependents for compensation for the death of the workman. We do not so construe the statute. The times are stated in the alternative: within ninety days after the accident “or” within ninety days after payments have ceased “or” within six months after the death of the workman. Under appellants’ construction of the statute, where
We find no error in the judgment of the trial court, and it is affirmed.