*1 denoting types or They different are not terms deration. proof. kinds of court the district remanded to

Judgment Case reversed. trial. new CROCKETT, LATIMER, WADE, McDONOUGH JJ., concur. PIPE CO. CAST IRON

PACIFIC STATES et al COMMISSION v. INDUSTRIAL P.2d., (218 970). May 16, 1950. Decided 7289. No. *2 J., Compensation Compen- See 71 C. Workmen’s Acts Sec. 391. Workmen’s sation, making for, note, time for claim under statutes see 108 A.L.E. 16. also, See 58 Am. 846. Jur. Stephens, Brayton Lowe, City, plaintiff. & Lake Salt Vernon, Attorney Genéral; Clinton D. John Andrew Brennan, Attorney General; King, Dwight L. Assistant Wayne Black, L. City, Salt Lake for defendants.

LATIMER, Justice. proceeding

This is a in certiorari States Pacific Pipe Company Cast Iron In- to review dustrial Commission of the of Utah D. Hor- State to Ida rocks, children, LeRoy her five minor Horrocks, D. deceased.

LeRoy Horrocks, D. deceased, employed was first plaintiff company in plant Ironton, Utah, its at in 1927. He left its but returned in continuously worked plaintiff January 25, until 1946. From 1932 until employed about pipe 1935 he was in the cleaning department. In he was transferred to the shipping department, where he worked until when he cleaning department. again pipe transferred back to

wás department until Jan- working in latter He continued department consisted uary 25, work in that 1946. His presence of process caused grinding pipes and this ship- exposed. The dust, which he was silicon dioxide air, open was next in the ping department was occasions, performing cleaning department, while and on go into shipping department, had to deceased duties cleaning exposed him the department, which further particles of dust. January the first suffered Horrocks

On hemorrhages lungs, and as a result from his of severe series re- never Thereafter to leave work. was forced *3 1946, 6, he filed a employment. On March turned to of the Industrial Commission State claim with the resulting disability compensation for total Utah for liability employer under the plaintiff denied The silicosis. 1943, Disability Act, 42—la Occupational U. C. A. Disease claiming seq., that not disabled —1 Horrocks was- be- et assuming that, he had even that of silicosis and cause disease, exposed only he had been dust contracted such years 26, 1946, prior January the ten 16 months bring coverage of him within the which would claim, hearings held were on Horrock’s one statute. Two July September and the second on 1947. on long setting delay in action down for the first largely brought by hearing was about the fact that suffering that he available evidence seemed indicate was from diseases other than silicosis and that he and Com- trying to mission were determine the real source of his reports medical trouble. The Commission received dur- ing conflicting, period, this while somewhat seemed to in- only that type dicate Horrocks was afflicted with a mild nondisabling produced silicosis. The evidence at the first hearing (which filed) was 16 months after the claim was concerning disability the cause of his did not remove the uncertainty medi clinical and further and doubtfulness so requested. In Decem reports cal and examinations were by physician the Commission was informed ber silicosis, authority who had and who considered an was case, thor and more been consulted on the that a further ough Horrocks examination had been made of suffering silicosis, nephritis, and then chronic being commission, hypertension. satisfied as disabling ailments mentioned effect of the different counsel, requested request of the deceased’s at doctor, report report was to show from the another disability percentage de of the suffered estimated January 2, the doctor ceased due to silicosis. On replied approximately per cent A suffered Horrocks caused silicosis. further request requested, examination was but as to who made January appear. Mrs. Hor- for this does not On attorneys that her husband had rocks informed deceased’s very seriously was, therefore, ill and unable to submit suggested by to the examination the commission. His attorneys requested delay final dis position of the case until such time as Mr. Horrocks re cuperated and was able to submit the examination suggested by February 10, 1948, the commission. On July 16, 1948, applicant claim died. On his widow filed a with the commission death benefits for herself and were, therefore, separate minor children. There two *4 pending Commission, distinct claims before we have the as dependants separate claim held that the death of is a and running distinct cause of action from the one to deceased injuries. Halling Commission, v. Industrial for his importance Utah 263 P. 78. This of is for the rea imposed the son that conditions to extend the limitations requirements period apply are that to Horrock’s claim dependents under the terms of the statute cannot obtain of the the benefits extension unless his claim has for, ripened payments compensation. into an award of findings fuse and confuse both of the Commission claims, claim state on the death those furnished us that: the silicosis contributed

bilateral “the that on physically department January decedent was January glomerulonephritis unable where there 25, 1946; 25, 1946, employed by work; to the decedent’s death to the extent was considerable during his with decedent had to the contributory plaintiff February dust during the leave his work because he was pulmonary due to the he worked in the period grinding silicosis; died of between 1932 of chronic of pipes; percent.” and that cleaning findings, dependent Upon these was awarded widow expenses hospital expenses, and medical burial $250.00 compensation. $990.00 plaintiff employer protests the award made grounds principally on the widow’s provisions

claim in the death case is barred of Sec. (b), (3), provides 42—la.—13 U. C. A. which follows: “(b) There is imposed upon every employer for liability compensation to the of dependents every employee cases where death subject following

results from an occupational to the disease, conditions: “(3) No shall for paid death from silicosis unless death results within two years from the last day upon which actually against worked for the employer whom compensation is claimed, except those eases where death results a period continuous total disabil- ity silicosis which compensation has been paid or and in awarded, such cases shall be such death results within if five the last years day upon the employee actually worked against (Italics added.) whom employer is claimed.”

There is no contention that deceased died within two years day employment, from his last so issues are narrowed to the bring of Whether the facts five-year of deceased within provis quoted. ions of the statute above The italicized portion above-quoted section of the statute requirements sets extending out two *5 limitation, award of which be met before both must necessarily upheld. the commission can be These are they cause, also con- become established deceased’s period precedent ditions to the of the limitation extension They (1) in the death case. are: a of continuous silicosis, (2) payment or total disability. for the total believe We although requirement fulfilled, first of the statute is ignores findings its issue in and decision. only irregularity proceedings, If this was the matter would be referred to the back commission for holding However, further consideration. our failure requirement disposes meet the second of the action and unnecessary. makes a back reference to the commission The evidence to sustain our conclusion on the first re- gleaned quirement can evidence of Drs. Rich- ards and Orton and the documents on file in the action. finding compels This evidence that deceased was suf- fering occupational from an disease at the time left his employment immediately thereafter; that he suf- fering silicosis; from ailments other than these Were superimposed upon the latter disease which resulted in being totally permanently deceased disabled from the time he left his died; until the time he twenty-five per silicosis contributed cent to this total disablement. From these apparent facts becomes prior had commission acted to Horrock’s death it required would' have been totally find that he was permanently having disabled as a result contracted sili- employed plaintiff company. cosis while requirement meet is, failure to the second however, fatal to Mrs. Horrocks’ to recover in her cause. may of whether make an

award of after death of an injuries personal suffered before death has been touched *6 Company Industrial et al. v. in Heiselt Construction on R. A. L. 15 Utah, 197 P. 58 Utah Commission of al., Utah et 799; Industrial Commission and in Parker v. cases, court, those considered This P. 2d 278. the compensation after claims workmen’s the survival of distinguished claimant, “accrued” between death of the payments in the decisions. and “unaccrued” Company case, supra, one In the Heiselt Construction Murphy, employee the Heiselt Construction an David fingers January Company, froze his subsequently awarded employment. of his He was course temporary partial dis- hospital expenses and medical and Murphy ability compensation. died on March resulting said not connected with from causes pending injuries. was death a claim At the time his disability, partial permanent commission for before the injury amputation of his the had necessitated since his fingers. claimed amount allocated His administrator the disability by permanent partial for the statute favor. court vaca- made an award his This by employer in that It was contended ted award. compensation Murphy to which was entitled case that digits only compensa- for the loss of his intended wages might any have earned in the tion for the loss injured; right and that to future if he had permanent partial did not award for become and, therefore, pass before death did not to the vested legal representative. Defendant contended that when fingers Murphy lost his thumb and immediately the loss vested virtue the section of the specifically provided compensation statute which member; depend á that such did not loss of validity commission, upon its an award statute, immediately right upon vests injured employee; compensation in the that since the com- death, pensation was fixed and determined before it be- right, came, was, upon which his death vested a vested in his estate. however, rejected employee’s court, contention

This saying was cut off represen- pass and did not death of the THURMAN, speaking for the court tative. Mr. Justice said: person living, while nor was “In this was ever made to person living to whom it could have been made. It not made

there 20, 1920, nearly subsequent Murphy’s nine months death. until December may not entitled serious consideration. The writer This distinction *7 by way argument wholly suggestion is has no desire to advance a of that by point, however, to distinction of merit. The intended be made devoid made, then, is, right is in if the does not vest until the award referred case, living present right there was no vested because there was no one hardly right passing can to an in whom it could vest. We conceive of 59, living.” in estate unless the had vested some one while Utah [58 197 P. 591] al, supra, In Parker v. Industrial et Mr. Commission WOLFE, court, distinguished speaking Justice for the those compensation where cases had been awarded and those cases where no award had been made. In that employee injured was in the course of his and an order was made and entered the commission allowing beginning 1933, September 27, award, 30, up to time of the to-wit: November 1934. payments paid lump All accrued were to in a sum. 2, employee 1934, any The died on December before check had him. been issued to His widow him and survived representative requested payment as of his estate beginning period Septem- accrued over the ending 2, 1934, regard ber December in up which the award had been made request, November 1934. The commission denied the and this court held that the commission Mr. error. Justice said: WOLFE compensation is, sense, disability wage, “The of in a and is earned

by operation making payable pertaining, law. conditions it all

54 just wages is entitled to it employee as much as he is earned by entitled to As disability contract. are payments ‘earned,’ they become and if vested, the employee they dies before are his estate is entitled to them.” paid, distinguishes The court then the Heiselt Construction case, saying Company supra, question there payments partial as to “unaccrued” permanent whether for disability passed to the estate. The court states: W. cases contained in note 15 Commission, approved tion which would United States eye, death of the “In the 557; or a Wozneak leg, or an following Casmey 58 Utah employee Fidelity have been payable v. v. cases arm, Buffalo & George had 197 P. Guaranty A. it was not he lived for was held that L. R. Gas Parks’ Sons Co., 821; Co. v. payable 15 A. L. R. 799. under Heiselt Construction Co. v. Industrial Salser the loss of a Co., App. the award after to the estate unpaid balance et Div. al., N. Y. Tex. Civ. member of such employee: ^[161] the date of the N. Y. S. 675, App., 224 such N. E. 933; compensa as an S. including “In all of cases, Case, these the Heiselt Construction Co. was as whether question payments partial permanent “unaecrued” disability to the estate. involve passed payments did accrued total use of temporary disability. By had the word ‘unaccrued’ in the case of a permanent partial disability, we do mean gives that where the statute a fixed sum for the loss of a imply member, operation accrues rather than at once of law. necessarily weekly designating We use the term ‘unaccrued’ in the sense of proportion the whole permanent partial period after the whole In death bears to the Heiselt Construction Co. Case period. injured at the time of death for had nine weeks, which was for total No $144, temporary disability. *8 had been made for for the loss of of four permanent partial parts fingers until after the death of the decedent. It is clear in that court intend to down lay any did rule to the effect accrued the time of death payments would not to the pass estate.” [at] nearly We believe the facts of this case more fit Here, rule announced Heiselt case. there are no payments, having accrued made no award disability. deceased for total Since prior no award had been made to the death of the em- ployee and since no determination of causation or weekly amounts to be had been made before that time, appear payments it would that no could have accrued. right injuries right personal is a to the payments and unless or a have accrued determination has been made the commission there is right personal representative depend- to which the or a ent case, can succeed. supra, The Heiselt was decided occupational and the disease statute was enacted would, in 1941. therefore, legis- It appear that had the passed lature act, modify when it the latter intended to payments rights the rule that unaccrued would vest dependents personal or representatives, pro- have would tolling vided for by filing period limitation of a claim so that an award could be made after death. Some of provisions the states have occupational in their disease prevent statutes which running the statute from if a claim has employee. been filed legislature Had our in- tended to do so it relatively would easy have been a pre- scription express. principles

We believe the delineated the Heiselt and Parker cases should be reaffirmed and that unless em- ployee has reduced his claim to an award or has been re- ceiving compensation his injuries cause of action for does pass personal either representative de- pendents. being case, Such the commission does not jurisdiction have to make an after-death award so as to prevent running. a limitation

While neither of the two cited cases are on all fours present they with point action out the difference be- enforcing right tween prior is vested to death and enforcing one that has not become present vested. In the action, we are at step least one removed from both those cases because even if the commission proceed could now award, to make an required we would to hold that payments would revert back to the time the terminated and that proceed could to en- force the without personal rep- substitution of a resentative entirely and in an different cause. *9 provisions 42— the of Sec. overlooked have not

We the commission to permits A. which U. C. 1— jurisdiction There cause once is obtained. retain of a the obtained but that can be no adjudication of jurisdiction proceed with an injuries personal this claim Horrocks’ continuing permit doctrine of does not us to extend the present jurisdiction claim. Horrocks’ to cover the Mrs. independent of re action is covery existence the death does not come into until rights not and her be confounded of her husband should running personal represen to Horrocks or his with those tative, necessary by except to the extent made the statute. identity previous decisions the of the two must Under our employee, employer and the actions of the be maintained only be carried and the commision can over one legislature. expressly provided if the to the other carry-over jurisdiction provision permiting A of one action prescribed for in to extend to another has our pendency the statutes and so of the deceased’s cause of running against prevent the action would not statute from present claim. case, imposed hardship mindful in this We are of the powerless, are to re-write the statute or but even so we charged escape plaintiff can with its effect unless relying estop it from terms acts which would though long period of the time statute. Even of filing elapsed of claim and the between the in this record which death Horrocks we find evidence against permit estoppel would to be used doctrine lengthened employer. of time was because deceased, employer, combined efforts out commission to find the true cause of deceased’s compensable injury. and whether had a During early portion time evidence indicated suffering deceased diseases which were non- *10 compensable present while in his silicosis lungs, type non-disabling. only was mild and It was by after extensive examinations medical ex- disinterested perts contributing it was determined silicosis was a factor. The acts of the deceased and counsel con- delay substantially degree tributed to the the same as employer did the acts of the and the commission and ac- cordingly plea estoppel against a of cannot be sustained plaintiff.

The award is vacated.

PRATT, J.,C. concurs. WOLFE, (concurring results). Justice ground I concur in the results on the that the words in (b) (3), 1943, reading Sec. 42—la—13 U. A.C.

paid or awarded* “* continuous * * except total disability in those ^[*] from silicosis cases where death results for which compensation during a has been of having mean that paid condition of or awarded permanent disability total from silicosis must have already happened at the time of the death. That condi- tion was not met in this case. unnecessary This makes whether, to determine words, absent these there would have during life, vested in the decedent compensation due to him total silicosis, although none had been nor unnecessary awarded. And it makes it to determine whether correctly the Heiselt case was de- cided when it held that for the loss of a bodily member, granted definitely by statute, accrues under an payment award or compensation; or whether it accrues virtue of My the statute. inclination tois favor the cases, view that at least where the extent of disability is not definite and not fixed an award nor recognized by payment, evidence of the amounts must ac- crue under an equivalent, award or its equiv- whatever the compen- as vested be, pass to the estate may

alent so short, during In at least as the lifetime. sation accrued extent, as in the in amount not fixed part of loss specific case life- body, is no accrual there injured accrued under person until it has time of the equivalent. But I need not determine award or its given reason above. in this because *11 WADE, (dissenting). Justice agree provisions of Sec. 42—la—13 I the cannot that making (b) 1943, (3), A. of an to bars the U. C. employee deceased under widow the facts of this case.

LeRoy Horrocks, employee, had on March D. the decedent 1946, during lifetime, 6, the commission a his filed with disability resulting pre- The claim for total from silicosis. vailing opinion presented the facts to states under could well have made an award disability, claimant for such but because it failed to do so within the lifetime of claimant commission is (cid:127) making dependents. now his barred award to LeRoy employee plain- When D. Horrocks left the suffering disability resulting he tiff from total compen- silicosis and as of that date became entitled although sation, and he in due time filed his claim for such compensation, beyond control, due to factors no award his during was made lifetime. The fact the commission failed to make an award before he died did right compensation. right not affect his be- totally came vested when he became disabled because of longer Although could in Parker v. silicosis and work. al., Commission, et Industrial 86 Utah 50 P. 2d expressly we did not overrule the case of Heiselt Construc- Company Comm., tion v. Industrial 58 Utah 197 P. by saying explained A. that case L. R. we representative personal the award which made to payments employee which after death of the was for employee and were would have had the lived become due entitled, already as to he had such which become employee payments held that had a as to vested already which he had become In the instant entitled. earning disability wage decedent commenced when rights payments unable those became to work became vested his lifetime. The failure of the change payments commission to order those did those rights. required everything had of him done machinery to set in action to aid payments. him in the those collection of Under such a state of facts that should done have been should be having purposes considered as done for the of de- termining imposed whether the conditions Sec. 42—la (b) (3) complied —13 have been with. To hold that dependent depends whether would be entitled to an award upon commission, though the action or inaction of the even rights acted, wholly it should have make would such de- pendent upon law, the commission rather than the a result *12 legislature possibly which the could not have intended. prevailing strictly wording opinion The follows (b) (3), 1943, Section 42—la—13 U. C. A. and holds that dependents decedent’s are not entitled to award since during or him awarded to his But lifetime. in this kind of case we should look to the purpose provision strictly of the rather than hold too express wording. purpose provision its of this to allow such decedent to recover com- pensation where the decedent was entitled and claimed his lifetime as a result of total dis- ability legislature obviously silicosis. overlooked possibility presented might person here that a all do power though his to obtain and even he were

60 beyond through con- thereto, circumstances entitled before might trol, an award not obtain conditions, comes I think the case such death. Under strictly if not of the act spirit intention under the Tax wording. Co. v. Portland Cement In Union its within 879; Light Trac- Utah & Comm., P. 2d 110 Utah 176 759; P. Comm., 2d 68 Tax Utah tion Co. v. State Spangler P. 28 A. L. R. Corless, 61 Utah v. spirit long way a went a to read into statute this court directly act, although result was and intention wording. contrary express v. its also Masich United See 101; Co., Utah, Smelting, Mining Refining & States Comm., Tax 116 Utah 191 P. 612 and Co. v. 2d Geneva Steel consistently 170; 208; re- 209 P. 2d Unless we are to have curring great injustice one, hardship like cases this light purpose we must construe statutes in the of their objects thereby, accomplished and this should equally dependents of be true where the those have who given industry their lives to are involved as well in cases great industry where stands lose strict construc- tion the statute.

McDONOUGH, J., participating.