Davey v. Norwood-White Coal Co.
| Decision Date | 13 March 1923 |
| Docket Number | 35248 |
| Citation | 192 N.W. 304,195 Iowa 459 |
| Parties | VEARL DAVEY, Appellee, v. NORWOOD-WHITE COAL COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.
PROCEEDING under the Workmen's Compensation Act. It was ordered therein by the industrial commissioner that the defendant continue to pay compensation to the plaintiff, as the surviving spouse of an injured workman, notwithstanding that she had remarried since the death of such workman, and was no longer dependent for support upon the compensation originally awarded to her. Upon appeal by the defendant to the district court, such order was affirmed there. From the judgment of the district court, the defendant has appealed to this court.
Affirmed.
Bates & Dashiell and Stipp, Perry, Bannister & Starzinger, for appellants.
Clarkson & Huebner, for appellee.
The plaintiff, Vearl Davey, was formerly Vearl Nesbitt, the surviving spouse of John Nesbitt, a former employee of the defendant's, who, in the course of such employment, was injured on March 23, 1920, and who died as a result of his injuries, on April 14th following. Said employee was survived also by his two children, aged seven years and two years respectively. Following his death, weekly compensation was awarded for 300 weeks, as provided by statute, and the amount thereof was agreed upon as $ 15 per week. Such compensation was regularly paid by the defendant until October 24, 1922 on which date the widow was married to one John R. Davey. The refusal of the defendant to make further payment was predicated upon the claim that by her marriage the surviving spouse ceased to be the surviving spouse of her former husband, and ceased to be his dependent, and ceased to be dependent for support upon the compensation previously awarded. The argument here is that the purpose of the statute is to award support to the dependents of the dead employee, and that, when the necessity of support ceases, the right to compensation ceases also: that is to say, that an award of compensation is analogous to an allowance of alimony in a divorce proceeding, and is subject to change in accordance with the changing financial condition of the respective parties.
On the other hand, it is the contention of appellee that the right to compensation is determined by the status of the parties at the time of the injury to the employee, and that such status at such time fixes the right of the dependent to the measure of compensation provided by the statute, and that the right to such measure becomes then and there vested. A single exception to this rule is conceded. This exception is found in Section 2477-m16 (c) (1), Code Supplement, 1913, as amended by Section 11, Chapter 270, Acts of the Thirty-seventh General Assembly, and is as follows:
"And should the deceased employee leave no dependent children, and should the surviving spouse remarry, then all compensation payable to her shall terminate on the date of such remarriage.'
Section 2477-m9 (d), Code Supplement, 1913, as amended by Section 3, Chapter 220, Acts of the Thirty-eighth General Assembly, provides:
"If death results from the injury, the employer shall pay the dependents of the employee wholly dependent upon his earnings for support at the time of the injury, a weekly payment equal to sixty per cent of his average weekly wages, but not more than fifteen ($ 15.00) dollars nor less than six ($ 6.00) dollars per week for a period of three hundred weeks."
Section 2477-m16 (c), Code Supplement, 1913, provides that the surviving spouse of a deceased employee and his children under sixteen years of age "shall be conclusively presumed to be wholly dependent" upon the deceased employee.
It will be observed that the statute expressly fixes the rate of compensation at 60 per cent of the average weekly wages of the deceased employee for 300 weeks. Such amount is fixed regardless of the number of dependents. If the number of dependents be many, the amount of compensation is not increased thereby; if they be few, it is not diminished thereby. If this deceased employee had been survived by one child as his sole dependent, the amount of compensation for which the defendant would be liable for such one child would be the same as the amount actually awarded to the widow and two dependent children. This statutory right to compensation supplants and bars a right of action for damages for wrongfully caused death. The right of action thus barred would be a vested right, were it not for this substitute provided by the statute. We see no less reason for saying that the statutory substitute becomes also a vested right.
It will be observed that it will avail defendant nothing to defeat the widow alone in her right to claim compensation. If she alone, because of her marriage, were excluded from the benefits of the compensation awarded, it would not reduce the defendant's burden of liability. The full amount would still be due to the dependent children. To meet this situation, the defendant contends, not only that the wife has ceased to be the dependent of her former husband, but that her children have also ceased to be such in that they have become the stepchildren of the new marriage, and have thereby become the dependents of John R. Davey, as a stepfather. It is undoubtedly true that these children, as stepchildren, have become the dependents of John R. Davey, within the meaning of the Compensation Act, in that, if he were to suffer injury in the course of his employment, resulting in his death, these children would be deemed his dependents, within the meaning of the Compensation Act. Hoover v. Central Iowa F. Co., 188 Iowa 943, 176 N.W. 945. It does not follow, however, that their right to compensation already awarded is lost, unless there be some provision of the...
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