Barnhart v. State Comp.

• Decision Date: 09 October 1945
• Docket Number: No. 9680.,9680.
• Court: West Virginia Supreme Court
• Parties: BARNHART. v. STATE COMPENSATION COMMISSIONER et al.

35 S.E.2d 686

BARNHART.
v.
STATE COMPENSATION
COMMISSIONER et al.

No. 9680.

Supreme Court of Appeals of West Virginia.

Oct. 9, 1945.

Syllabus by the Court.

1. Under Code, 2-2-3, except when the last day falls on Sunday, the time within which an act is to be done must be computed by excluding the first day and including the last day of the period.

2. An employee, last exposed to silicon dioxide dust on April 3, 1943, and dying from silicosis on April 4, 1944, is not within the terms of Code, 23-6-7(d), and his widow is not entitled to the benefits which the statute provides for an employee who dies from silicosis within one year from the date of his last exposure to silicon dioxide dust in harmful quantities.

Appeal from Workmen's Compensation Appeal Board.

Proceedings under the Workmen's Compensation Act on the claim of Annie Barn-hart for compensation for the death of her husband, Charles Barnhart, from silicosis as the alleged result of his employment with the Taylor, Smith & Taylor Company. From a decision of the Workmen's Compensation Appeal Board affirming the order of the commissioner granting an award to claimant as the widow of a deceased employee, employer appeals.

Reversed and remanded with directions.

W. W. Ingram, of Chester, for appellant.

James M. Duffy, of East Liverpool, Ohio, and James G. Jeter, Jr., of Charleston, for appellee.

HAYMOND, Judge.

The controlling question arising upon this appeal calls for the proper application of the rule for the computation of time prescribed by Chapter 2, Article 2, Section 3,

[35 S.E.2d 687]

and involves the provisions of Chapter 23, Article 6, Section 7(d), of the Code of West Virginia, which latter statute creates benefits for the dependent of an employee who dies from silicosis within one year from the date of his last exposure to silicon dioxide dust in harmful quantities. The facts are not disputed and the following occurrences are admitted by all parties to this controversy.

For several years before April 3, 1943, Charles Barnhart was an employee of The Taylor, Smith and Taylor Company, and worked as a kiln placer in its pottery at Chester, Hancock County, West Virginia. On that day he ceased to work for his employer and thereafter he was not exposed to silicon dioxide dust in harmful quantities. He filed an application for compensation with the State Compensation Commissioner on November 29, 1943, but before the hearings on this claim were concluded, he died on Tuesday, April 4, 1944. On April 3, 1944, and...