Mercer v. Ott

• Court: Supreme Court of West Virginia
• Writing for the Court: MASON, J.
• Citation: 78 W.Va. 629
• Parties: Mercer, Admr., v. Ott, State Compensation Commissioner.
• Decision Date: 19 September 1916

78 W.Va. 629

Mercer, Admr.,
v.
Ott, State Compensation Commissioner.

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1916.
Decided September 19, 1916.

[78 W.Va. 629]

1. Master and Servant Injury to Servant Workmen's Compensation Act Claim.

Where the statute does not prescribe the form of the application to be used by a dependent applying for compensation from the workmen's compensation fund, but does require the public service commission to adopt "the forms of application of those claiming to be entitled to benefits of compensation therefrom",

[78 W.Va. 630]

and such forms are adopted by the commission, and a person claiming to be entitled to compensation out of such fund makes application on one of the forms prescribed by the commission, and the form is not in conflict with the provisions of this act, the commission should not reject the claim for any defect in the application not affecting the merits of the claim, after the time has expired when a new application can be made. (p. 630).

2. Same Injuries to Servant Workmen's Compensation Act.

A car containing coal belonging to a brick company was placed by a railroad company on a track of the brick company, and a man was employed by the brick company to unload the coal, and while doing so, was under the car in discharge of his duty, the car was struck by another car of the railroad company, and the car under which the employee was at work was run over the employee and he was thereby injured to such extent that he died of the injuries. Held, that the injuries so sustained were received in the course of and resulted from said employment. (p. 635).

3. Same Injuries to Servant Workmen's Compensation Act Defenses.

Where a workman is killed by an accident arising in the course of and resulting from his employment, and a tort-feasor other than his employer is responsible therefor, the right to compensation from the workmen's compensation fund by a dependent of the deceased is not lost by a recovery of damages against the tortfeasor, by the personal representative of the deceased. (p. 635).

Appeal from order of State Compensation Commissioner.

Proceedings by J. D. S. Mercer, administrator, for compensation for the death of a deceased servant. Compensation was denied, and from the order of Lee Ott, State Compensation Commissioner, claimant appeals, and the dependent mother's representative joins therein.

Reversed and remanded.

Edwin F. Kline, Alexander & McCabe, and R. Kemp Morton, for appellant.

A. A. Lilly, Attorney General, and Frank Lively, Assistant Attorney General, for appellee.

Mason, Judge:

The Workmen's Compensation Fund was established by Chapter 10 of the Acts of the Legislature of 1913. Section

[78 W.Va. 631]

19 of that chapter provides: '' The commission shall establish a workmen's compensation fund from premiums paid thereto by the employers and employes as herein provided, for the benefit of employes of employers that have paid the premiums applicable to the classes to which they belong and for the benefit of the dependents of such employes, and shall adopt rules and regulations with respect to the collection, maintenance and disbursement of said fund, not in conflict with the provisions of this act," Under this act the fund was to be administered by the Public Service Commission. By section 25 it is provided that, '' The commission shall disburse the workmen's compensation fund to such employes (within the meaning of this act) of employers who have paid into said fund the premiums for the month in which the injury occurs applicable to the classes to which they belong, as shall have received injuries in this state in the course of and resulting from their employment, or to the dependents, if any, of such employes in case death has ensued, according to the provisions hereinafter made."

By section 43 it is provided that "in ease the final action of said commission denies the right of the claimant to participate at all in the fund, on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant's right, then the claimant may, within sixty days after notice of the final action of the commission, apply for an appeal to the supreme court of appeals.''

Application for payment out of this fund must be made in "due form" within six months from the date of the injury or death. Section 39. Section 8 provides: "The commission shall adopt reasonable and proper rules to govern its procedure, regulate and provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employes, the nature and extent of the proof and evidence, and the method of taking and furnishing the same, to establish the rights to benefits or compensation from the fund hereinafter provided for, the forms of application of those claiming to be entitled to benefits or compensation

[78 W.Va. 632]

therefrom, the method of making investigations, physical examinations and inspections, and prescribing the time within which adjudications and awards shall be made."

Section 23 of the act provides: "Any employer subject to this act who shall elect to pay into the workmen's compensation fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employe, however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premiums; provided, the injured employe has remained in his service with notice that his employer has elected to pay into the workmen's compensation fund the premiums provided by this act. The continuation in the service of such employer with such notice shall be deemed a waiver by the employe of his right of action aforesaid.''

The Mack Manufacturing Company operated a brick plant in Hancock County, West Virginia, and was subject to the workmen's compensation act, and had paid the premiums prescribed by that act. Bernard Zubritsky, deceased, was an employee of said brick company. While in the employ of said company, Zubritsky was killed under the following circumstances: He was employed by the...