Greenwood v. Luby

• Decision Date: 16 December 1926
• Citation: 105 Conn. 398,135 A. 578
• Court: Connecticut Supreme Court
• Parties: GREENWOOD ET AL. v. LUBY ET AL.

135 A. 578

105 Conn. 398

GREENWOOD ET AL. v. LUBY ET AL.

Supreme Court of Errors of Connecticut.

December 16, 1926

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Proceeding under the Workmen's Compensation Act by Elizabeth Greenwood, individually and as executrix, for the death of Samuel Greenwood, claimant, opposed by William J. Luby and others. An award of the compensation commissioner to the dependent widow and also to the executrix was confirmed by the superior court as to the award to the widow, but overruled as to the award to the executrix, who appeals. Error. Award of compensation commissioner affirmed.

George E. Beers, of New Haven, and Denis T. O'Brien, Jr., of Meriden, for appellant.

Daniel L. O'Neil, of New Haven, and James E. Murphy, of Bridgeport, for appellees.

Argued before WHEELER, C.J., and CURTIS, MALTBIE HAINES, and HINMAN, JJ.

WHEELER, C.J.

Samuel Greenwood suffered a total incapacity from pneumoconiosis from November 14, 1925, until his death on April 14, 1926 between these dates pulmonary tuberculosis developed in him because of the weakened resistance caused by the pneumoconiosis, and he died as a result of the pneumoconiosis. His incapacity and death arose out of and in the course of his employment with the respondent. On February 18, 1926, this employee made application for compensation to the commissioner for the Third district, and a date for a hearing was fixed for March 11, 1926, and continued to March 30, 1926. The employee claimant died before his application was heard. On April 30, 1926, the parties hereto, Mrs Greenwood, as executrix and individually as the dependent widow of the deceased claimant, agreed that " the claims for incapacity and for death" might be heard together on April 30, 1926, any informality as to notice being waived. Subsequently, on May 8, 1926, the commissioner awarded compensation in favor of the dependent widow for the death and from its date, and in favor of the executrix of the deceased claimant for the period of incapacity from November 14, 1925, to April 14, 1926.

The respondent employer took his appeal from this award to the superior court, and that court affirmed the award to the dependent widow, and overruled the award to the executrix for compensation for incapacity, and sustained the appeal therefrom. The executrix appealed from that part of the judgment of the superior court overruling the award made by the commissioner to the executrix.

The immediate question raised upon this appeal is the right of the commissioner to award compensation for incapacity, where application therefor is made in the lifetime of the employee, but his death follows before the award is made. The answer to this question will be found in ascertaining the relation of the claimant to compensation for his incapacity in the period prior to his death. In Jackson v. Berlin Construction Co., 93 Conn. 155, 157, 105 A. 362, we describe the relation, under the Compensation Act (Gen. St. 1918, § § 5339-5414), of the employee to compensation which is paid to him for his incapacity, or which has accrued but is unpaid in these words:

" It [the compensation] is paid to him because the statute intends to provide support for him during his period of incapacity. Whatever is paid him belongs to him. Whatever of compensation accrues in his lifetime and is unpaid becomes upon his decease an asset of his estate."

Again, we say in Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, at page 705, 131 A. 739, 740:

" The compensation awarded to the living employee is payable to and belongs to him."

In Bassett v. Stratford Lumber Co., 105 Conn. 297, 135 A. 574, we say:

" These provisions of the Compensation Act very plainly indicate the legislative intention to confine the employee's interest to such part of the award as

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