Barnhart v. State Compensation Com'r

• Decision Date: 09 October 1945
• Docket Number: 9680.
• Citation: 35 S.E.2d 686,128 W.Va. 29
• Parties: BARNHART v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

35 S.E.2d 686

128 W.Va. 29

BARNHART v. STATE COMPENSATION COMMISSIONER et al.

No. 9680.

Supreme Court of Appeals of West Virginia.

October 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.

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 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 before his death, his wife, Annie Barnhart, filed her application with the Commissioner for compensation as his dependent, claiming the benefits allowed by the statute for the widow of a deceased employee.

The employer appeared and opposed the claim before the State Compensation Commissioner. On July 12, 1944, the Commissioner awarded the claimant, Annie Barnhart, compensation for the death of her husband, at the rate of $30.00 per month, to continue until her death or remarriage or further order of the Commissioner. This order of the Commissioner, upon appeal by the employer to the Workmen's Compensation Appeal Board, was affirmed by the Board on October 7, 1944. To that order of the Board this appeal was allowed by this Court.

Chapter 2, Article 2, Section 3 of the Code prescribes the method of computing the time within which an act occurs, and directs that it shall be determined by excluding the first day and including the last day, and that if the last day be Sunday, it shall be excluded. The terms of the statute excluding Sunday, when it is the last day, have no application to the facts of this case, for it is not disputed that Barnhart died at 2:40 o'clock in the afternoon of Tuesday, April 4, 1944. The employer insists that the last day of the year elapsing between the date of Barnhart's last exposure to silicon dioxide dust in harmful quantities and the date of his death was April 3, 1944, and that his death did not occur within the year. The claimant denies this contention and vigorously asserts that the last day of the period between the date of Barnhart's last exposure and the date of his death was not April 3, 1944, but the next day, April 4, 1944, and that, under the above statute, he died within one year from his last exposure to silicon dioxide dust. The statute upon which the claimant relies provides benefits for the dependent, here the widow, of the deceased employee, only in the event the employee dies from silicosis within one year from the date of his last exposure to silicon dioxide dust in the quantities mentioned by the act. Code, 23-6-7(d). If his death was within the year, his widow, as his dependent, provided her claim also be filed within the year, is entitled to the compensation allowed by the statute. If, however, he died at any time after the expiration of the year, her claim, having no foundation in law, must fail. ...