Lancaster v. State Comp. Com'r, 9390.

Decision Date08 December 1942
Docket NumberNo. 9390.,9390.
CourtWest Virginia Supreme Court
PartiesLANCASTER . v. STATE COMPENSATION COM'R et al.

23 S.E.2d 601

LANCASTER .
v.
STATE COMPENSATION COM'R et al.

No. 9390.

Supreme Court of Appeals of West Virginia.

Dec. 8, 1942.


[23 S.E.2d 601]
Syllabus by the Court.

1. The provision of Acts of the West Virginia Legislature, Regular Session, 1915, Chapter 9, Section 33(c), Code, 23-4-10 (d), which reads: "if * * * it shall be ascertained that said widow or widower is living with a man or woman, as the case may be, as man and wife and not married, or the widow living a life of prostitution, the commissioner may stop the payment of benefits herein provided to said widow or widower", is not applicable to the widow of a deceased employee fatally injured in 1914, who has been awarded compensation under Acts of the West Virginia Legislature,

[23 S.E.2d 602]

Regular Session, 1913, Chapter 10, Section 33(4).

2. Where a final award allowing compensation has been made to a dependent widow in accordance with the statute in effect at the time of her husband's injury and death, a subsequent amendment of the statute is not applicable to her right to compensation.

3. The Workmen's Compensation Act (Code, 23-4) contains no provision for the payment of interest on past-due installments of compensation, and interest should not be allowed and paid on such installments.

FOX, P., dissenting.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Hester Siner Lancaster, claimant, for reinstatement on the compensation rolls and payment of past-due installments of compensation for the death of her husband, Robert Lancaster, employee of the Solvay Collieries Company. From an order of the Compensation Appeal Board, affirming an order of the State Compensation Commissioner refusing reinstatement and payment of such installments, claimant appeals.

Reversed and remanded.

Mrs. Lucille C. Jeter, of Charleston, for appellant.

No appearance on behalf of appellees.

RILEY, Judge.

Hester Siner Lancaster, widow of Robert Lancaster, deceased, appeals from an order of the Compensation Appeal Board, affirming an order of the Compensation Commissioner entered on April 16, 1942, refusing to reinstate her to the compensation rolls, from which she had been suspended by order of the Commissioner entered on February 13, 1936, and also refusing payment of past-due installments of compensation.

Decedent was fatally injured on June 25, 1914, while working for the Solvay Collieries Company, predecessor of Kingston-Pocahontas Coal Company. Under the Compensation Act, as originally enacted, Acts, West Virginia Legislature, Regular Session, 1913, Chapter 10, Section 33(4), claimant and her children were awarded compensation on the then statutory basis of twenty dollars per month to the widow and five dollars monthly for each child. The order making the award was destroyed in the fire which burned the capitol building in 1921 and no copy thereof is contained in this record.

Claimant received her compensation checks regularly each month until June, 1919, when, in search of work, she placed her two children in her mother's care and left the home where she had been staying with her father and mother. The Commissioner was not advised as to her change of address, and, consequently, two checks were mailed to her original address. Claimant's mother, not knowing her daughter's whereabouts, returned the checks to the Commissioner. Claimant did not return to her parents' home until 1935. She then learned for the first time that the compensation checks, with the exception of the two which were returned, had not been received and the proceeds applied to the support of her family, and promptly wrote the Commissioner asking for the payment of the past-due installments.

After an investigation the Commissioner, without any hearing, entered an order on February 13, 1936, stopping payment of compensation to claimant as of June, 1919, the date of the last payment, on the ground that she had been illicitly living with a man or men as a wife and had lived a life of prostitution. The statute, Acts, West Virginia Legislature, Regular Session, 1935, Chapter 78, Section 10(d), under which the Commissioner acted in stopping compensation, was in force when the order of April 16, 1942, complained of here, was entered, Code, 23-4-10(d). It was not until the enactment of Acts, West Virginia Legislature, 1915, Chapter 9, Section 33(c), that the provision for the forfeiture of compensation on the basis of misconduct of a widow or widower, relied upon by the Commissioner and the Appeal Board, was incorporated in the Workmen's Compensation Act.

Thus the question which initially and fairly arises is whether the claimant's right to payments under the award is governed by the statute in force at the date of the fatal injury, June 25, 1914, or at the time of the alleged misconduct.

Because the relation between the employer and employee, under the Workmen's Compensation Act, is voluntary, it is contractual and the statute becomes an integral part of the contract. Gooding v. Ott, State Compensation Commissioner, 77 W.

[23 S.E.2d 603]

Va. 487, Pt. 2, Syl., 87 S.E. 862, L.R.A. 1916D, 637; Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 200, 189 S.E. 670. Upon this theory courts generally postulate the rule that as regards an injured employee the time of injury is determinative of whether the earlier or later provisions of the Workmen's Compensation Act apply. For a collation of authorities, see A.L.R. note to Cote, Adm'x, v. Bachelder-Worcester Company, 85 N.H. 444, 160 A. 101, 82 A.L.R. 1239, note pages 1244, 1245. And the rule likewise is applicable to dependents of an employee killed in the course of and as a result of his employment. See above-mentioned note, pages 1245-1249, inclusive, citing Stanswsky v. Industrial Commission, 344 111. 436, 176 N.E....

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