Martini v. Kemmerer Coal Co.

• Citation: 38 Wyo. 172,265 P. 707
• Decision Date: 27 March 1928
• Docket Number: 1443
• Parties: MARTINI, ET UX. v. KEMMERER COAL CO. [*]
• Court: United States State Supreme Court of Wyoming

265 P. 707

38 Wyo. 172

MARTINI, ET UX. v. KEMMERER COAL CO. ^[*]

No. 1443

Supreme Court of Wyoming

March 27, 1928

ERROR to District Court, Lincoln County; JOHN R. ARNOLD, Judge.

In the matter of the personal injury to Frank Martini, deceased, an employee of the Kemmerer Coal Company. Application of Dionigio Martini and wife, surviving parents of the deceased for compensation. Judgment denying the claim and petitioners bring error.

Affirmed.

W. O Wilson, Attorney General, J. A. Greenwood, Deputy Attorney General, and J. A. Christmas, for plaintiffs in error.

The statute of limitation does not apply where death is the immediate result of the injury; the surviving parents of the deceased workman are entitled to recover under the rates fixed by law which become a vested right immediately upon the death of their son; the injured employee was unmarried and his parents residing in Italy were his dependents; they had no means of knowing of the Workmen's Compensation Law in Wyoming. It was the moral as well as the legal duty of defendant in error to advise plaintiffs in error of their right under the law, since the law itself deprives dependents of their right of action for damages, § 4317 C. S.; LaChapelle v. U. P. Coal Co., 29 Wyo. 449; Hotelling v. Oil Co., 238 P. 544. The right to receive compensation having vested in plaintiffs in error on the death of their son, cannot be extinguished merely because they did not file a claim within twelve months after the date of his death. Plaintiffs in error were deprived of an opportunity to show an excuse for not filing their claim. The purpose of filing the claim is to prevent fraud, and it is intended to apply where death is not the result of an accident, Roberts v. Packing Co., 149 P. 413; the filing of a claim is unnecessary where employer had full knowledge of the accident, Halverhout v. Co., 155 P 916. The only state requiring a strict compliance with the rule requiring the filing of claims is the State of Michigan, McMullen v. Co., (Mich.) 166 N.W. 1018. If there be a reasonable excuse for not filing the claim within the period, the claim is not barred, A. L. R. 1918-E 560. The above cases refer to injury cases where death is not a result, and should have even more force where immediate death is the result. Plaintiffs in error were living in Italy at the time of the death of their son Frank Martini, and upon his death, became vested with a right to receive compensation.

T. S Taliaferro, Jr., and Arthur-Lee Taliaferro, for defendant in error.

Reference to a workman, under the Compensation Law, shall include a reference to his dependent family, if workman is dead, Sec. 4321 (i). The section defines dependent families. Plaintiffs in error are surviving parents of decedent, § 4334 C. S., Chap. 60, L. 1923, page 80; the section was amended by Chap. 111, L. 1927. The reason for these various amendments is entirely obvious; the state authorities, as well as the employer, have the right to know the nature and quality of accidents so that the employer may report the same within the time limited. The trial court found that the claim of plaintiffs in error was barred; the Italian Consul residing at Denver, is the lawful agent of all nonresident alien subjects of Italy, in any rights that accrue to them under any of the laws of the United States or of the several states. In the face of the record and in the face of existing facts, the attorneys for plaintiffs in error cannot assume that plaintiffs in error were ignorant of the death of their son or that defendant in error kept them ignorant of the facts; there is no such charge in the record, Roberts v. Packing Co., (Kans.) 149 P. 413. Every award under the Compensation Law is a judicial determination of the rights of the employer and employee, and the industrial accident fund as to all matters involved, L. 1925, p. 130. The ability to perform any work at any gainful occupation is the pole-star of the Wyoming system and not the ability to work at some given craft or skilled employment. The Kansas law differs from ours. There is nothing in the record that shows, or tends to show, that plaintiffs in error have any reason to expect future financial assistance from decedent. The limitation provisions of the statute are to be literally applied.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

Frank Martini, an employee of the Kemmerer Coal Company, was killed in a mine disaster on August 14, 1923. The employer duly filed notice of the death, as required by law, on August 21, 1923. No claim for compensation having been filed within twelve months, the court entered an order, on September 15, 1924, directing the matter to be closed and discontinued. On April 8, 1925, Dionigio Martini and Mary Martini filed a motion to re-open the matter, claiming compensation under the law as surviving parents of the deceased. This application was denied. On February 1, 1926, they filed a petition, making the same claim, asking compensation in the sum of $ 333.33. Before the hearing on this petition and on March 17, 1927, they filed an affidavit stating, among other things, that they had resided in Italy until May, 1925, when they came to the United States and that the decedent had sent them money during his life time and up to the 7th day of August, 1923. Nothing is shown either in the petition or in the affidavit as to when claimants received notice of the death of their son, nor does that fact appear otherwise in the record. Claimants did not attempt to show that they were unable to file their claim within twelve months after Frank Martini's death. A demurrer was filed to the petition. This demurrer was sustained, the claim of the petitioners was denied, and from that judgment an appeal has been taken to this court. The only question involved herein is as to whether or not the claim for compensation was filed in time.

1. Section 4326, Wyo. Comp. Stat. 1920, as amended by Ch. 60, Paragraph 6, of the Session Laws of 1923, in force at the time of the accident under consideration here, provides as follows:

"The injured employee's report of accident may be made upon a printed form prepared by the State Treasurer for that purpose and no applications shall be valid or claim for compensation enforceable unless such application or claim is filed by the injured workman or someone on his behalf with the clerk of the District Court in the county wherein such accident occurred within twelve months after the day upon which the injury occurred or the right thereto accrued."

The injury received by Frank Martini resulted in death, and it is contended that whenever that is true a claim cannot well be filed by the injured workman or by someone on his behalf, and that accordingly the limitation contained in the statute cannot be held to be applicable. That contention might be good were it not for other statutory provisions. But subdivision (i) of Section 4321, Wyo. Comp. Stat. 1920 specifically provides "any reference to workman who has been injured shall, where the workman is dead, include a reference to his 'dependent family' as hereinafter defined." It is clear, accordingly, that if the parents of the decedent come within the term "dependent family" the claim was required to be filed within twelve months by them or by someone in their behalf. Now that fact cannot admit of doubt, for otherwise claimants would not be entitled to any compensation at all. In fact, subdivision (k) of Section 4321 makes the point very clear as to claimants herein by stating:

"The foregoing definition of 'dependent families' shall not include any of the persons named who are aliens residing beyond the jurisdiction of the United States of America except * * * parent or parents."

It appears, accordingly, that the limitation of time for filing a claim, mentioned above, is applicable in the case at bar, and the statute, stripped of all superfluous words, plainly reads:

"No applications shall be valid or claim for compensation enforceable unless such application or claim is filed * * * within twelve months after the day upon which the injury occurred or the right thereto accrued."

In the instant case, the date of the accrual of the right and that of the injury is the same, and the only remaining question herein is, as to whether or not the limitation of time is mandatory, or whether the fact that claimants were aliens and resided in Italy at the time of the death of the decedent, and for some time thereafter, should be held to excuse them.

2. The various Workmen's Compensation Acts are not all alike. Thus the Massachusetts and the Kansas Acts, as well as the English Act provide, among other things, that if the failure to file a claim within the statutory time is due to mistake or other reasonable cause, such failure shall be excused. Cases decided on the point under consideration under such statutes cannot, of course, be a safe guide for us in determining the force and effect of our statute, although we might mention that the Massachusetts court, in the case of In re Gorski, 227 Mass. 456, 116 N.E. 811, has held that simple absence from the country is not a sufficient excuse for not filing a claim in time, but that the burden is on the claimant to show further that the claim could not have been filed within the time provided by statute and that in the absence of such showing the allowance of a claim must be reversed. So that, even if our statute contained a provision similar to that in Massachusetts, we should still, if we were to follow the case last cited, be constrained to hold that no sufficient excuse for not filing the claim in time had been offered therein.

Now turning to cases which have been decided under statutes which like ours, contain...