Collett. v. State Comp. Comm'r (No

• Decision Date: 16 April 1935
• Docket Number: (No,. 8128)
• Parties: Bertha Collett et al. v. State Compensation Commissioner
• Court: West Virginia Supreme Court

116 W.Va. 213

Bertha Collett et al.

v.State Compensation Commissioner

(No, . 8128)

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1935.

Decided April 16, 1935.

1. Master and Servant

The limitation in section 40, chapter 71, Acts 1929, to the effect that no further award may be made in fatal cases except within one year after the death of the employee, is not retroactive in its operation and does not affect the continuing jurisdiction of the commissioner in cases which had their origin prior to its enactment.

2. Master and Servant

As a general rule laches cannot be pleaded against a claimant as long as the claim is pending before the commissioner.

3. Master and Servant

Heat exhaustion attributable to a specific event is compensable under our Workmen's Compensation Act, if shown to have resulted from special or particular risks or dangers attendant to the employment, to which the general public is not exposed.

Proceeding by Bertha Collett and another to review an order of the Compensation Commissioner denying compensation for the death of Ira Collett, an employee of the Weirton Steel Company.

Reversed; remanded with directions.

Brown, Jackson & Knight, Herman Bennett and W. T. O'Farrell, for appellants.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for respondent.

Steptoe & Johnson and James M. Guiher, for Weirton Steel Company.

Woods, Judge:

This appeal is prosecuted from an order of the Compensation Commissioner denying Bertha Collett and Frances Martha Collett, widow and daughter, respectively, and dependents, of Ira Collett, deceased, compensation for death of the latter.

Ira Collett, thirty-two years of age, who, for years had been employed as "roller" in one of respondent's tin mills, dropped dead during his tour of duty, at 1:20 o'clock, P.M., Monday, June 21, 1926. On that day the men, instead of throwing out three singles, were working four, i.e., making a "turn". Collett, as "roller", was required, among other things, to lift forty pound packs of metal, in white heat condition, from the floor onto the roller, by use of short tongs. Although the highest temperature reading on the outside for the day, which was clear, was 81°, fellow employees testified, in effect, that the heat in the mill seemed hotter, affected them more, than usual. Collett, who was of athletic build, had never lost time on account of sickness. He was always in good spirits, and seemed to stand the mill heat well. He began work at seven o'clock on the date of his death, apparently in good health. His fellow employees state that along about 10:30 to 11 o 'clock they noticed that he appeared to be fatigued, that his eyes were sunken and his face flushed, and that he complained of being "all in". An autopsy was had shortly thereafter, the verdict being" He died from bronchopneumonia and dilation of heart." The physician, called by coroner, diagnosed the case: "Marked dilation of heart (overfilled with blood) and broncho-pneumonia of lower lungs, beginning of acute perecarditis." And the company physician signed a death certificate of like import.

The Commissioner, on August 27, 1926, and after consideration of the several affidavits and papers submitted by the inspector, wrote the widow stating, among other things, that "it has not been established that the death of the employee was the result of an injury received in course of and resulting from his employment. If you have any further evidence to submit in the claim the Commissioner will be glad to receive and consider it." It appears from the Commissioner's letter of March 21, 1927, to the inspector that Mrs. Collett had been in the former's office in reference to the claim. In this letter the inspector was directed to "see what evidence she (Mrs. Collett) has to produce." The inspector wrote Commissioner as of April 2, 1927, and October 4, 1927, stating in effect in the latter communication that the widow had directed that claim be dropped. The next thing appearing in the file is a letter, dated June 13, 1932, asking to submit further evidence in support of their claim. And in 1933, a formal petition was filed, accompanied by a number of affidavits secured in 1932. After a re-consideration of the file the Commissioner, on March 28, 1934, denied the claim. A statutory hearing was had the latter part of the year. At this hearing the evidence of the lay witnesses was...