Margaret C. Barber v. Estey Organ Co.

• Decision Date: 04 November 1926
• Citation: 135 A. 1,100 Vt. 72
• Parties: MARGARET C. BARBER v. ESTEY ORGAN CO. ET AL
• Court: Vermont Supreme Court

135 A. 1

100 Vt. 72

MARGARET C. BARBER v. ESTEY ORGAN CO. ET AL

Supreme Court of Vermont

November 4, 1926

October Term, 1926.

APPEAL from findings, order, and award of commissioner of industries, Windham County, denying application for compensation by dependent on account of workman's death. The plaintiff appealed. The opinion states the case.

order affirmed with costs. Let the result be certified to the commissioner of industries.

Frank E. Barber and Harold E. Whitney for the plaintiff.

M P. Maurice for the defendant.

Present WATSON, C. J., POWERS, SLACK, and FISH, JJ., and MOULTON Supr. J.

OPINION

POWERS

The plaintiff seeks to recover compensation on account of the death of George Cottrill who was instantly killed while employed by the Estey Organ Company, and on whom she was partially dependent. She comes to this Court by an appeal from an order of the commissioner of industries denying her application. The findings are such that the whole case turns on the question whether the plaintiff was required to give the Organ Company the written notice specified in G L. 5796, 5797. If she was, she has no claim. It is argued in her behalf that the payment of the $ 100 for burial expenses (shown by the findings), as required by G. L. 5777, amounts to a voluntary payment of compensation, which under the terms of the section first above cited dispenses with the necessity of such notice. It is to be observed that the payment of burial expenses is to be made to the persons entitled to compensation; and it is urged in behalf of the defendants that the findings do not show that the payment here involved was made to such persons. It may be admitted that such a finding would be necessary in order to support the plaintiff's theory of the law, if such theory was to be adopted by this Court; and it is true that the findings, themselves, do not show to whom the burial expenses were in fact paid. But in the appeal, the commissioner, complying with G. L. 5808, certifies up the questions of law to be reviewed, and therein embodies the fact that the burial expenses were paid "to the persons entitled to compensation and not to the personal representative of the deceased employee." While this, and the other facts incorporated into the questions certified, should have been included in the formal findings, we understand from the record that the commissioner intended that those findings were to be taken as...