Poccardi v. Ott
| Decision Date | 07 September 1920 |
| Docket Number | 4062. |
| Citation | 104 S.E. 54,86 W.Va. 565 |
| Parties | POCCARDI, ROYAL CONSUL, ETC., v. OTT, STATE COMPENSATION COMMISSIONER. |
| Court | West Virginia Supreme Court |
Submitted September 1, 1920.
Syllabus by the Court.
Upon the death of a beneficiary, to whom an award has been made pursuant to the provisions of clause (c), section 33, chapter 15P, Code 1918 (Code Supp. 1918, sec. 689), accruing and payable in periodic installments, the lawful representative of his or her estate may claim and receive such portion thereof as had accrued and remained unpaid at the date of the beneficiary's death.
Pursuant to the general authority conferred by section 39, chapter 15P, Code 1918 (Code Supp. 1918, sec. 695), section 39, chapter 131, Acts 1919, the executor or administrator of the estate of a deceased nonresident alien beneficiary may be officially represented, in the collection of such accrued and unpaid installments, by the consular officer of the country of which such beneficiary was a citizen or subject.
From an order of Lee Ott, State Compensation Commissioner, directing the return of a check drawn and mailed by him to the widow and beneficiary of Vito Orazio Gasparro, an Italian, killed in the state in the course of his employment, within Workmen's Compensation Act, Gaetano Poccardi, Royal Consul, appeals on behalf of the widow's heirs executors, and assigns. Payment of claim allowed.
Joseph W. Henderson, of Philadelphia, Pa., for petitioner.
E. T England, Atty. Gen., and Frank Lively, Asst. Atty. Gen., for respondent.
Complaining of an order of the state Compensation Commissioner directing the return of a check for $244.19, theretofore drawn and mailed by him, in ignorance of her death, to the widow and beneficiary of Vito Orazio Gasparro, an Italian, killed in this state in the course of employment within the scope of the Workmen's Compensation Act, Gaetano Poccardi, Royal Consul, prosecutes this appeal "on behalf of the heirs executors, and assigns" of said widow. The case presents the question of the status of a compensation award upon the death of the beneficiary.
Vito Gasparro died on April 16, 1917, from fatal injuries received in a coal mine in this state. He left two dependents, found by the commissioner to be entitled to compensation, his widow and one son, both of whom resided in Italy. The son died December 26, 1917, and the widow August 30, 1918. The compensation award to the former was paid to the date of his death. The check involved in this inquiry covered compensation payable to the widow for the period from August, 1917, to June 30, 1918, and which, therefore, had accrued at the time of her death, though the check was not mailed for several months thereafter and in ignorance of her demise. Upon learning the facts, respondent directed that the check be returned to him, and likewise declined to pay the compensation due for the period from June 30, 1918, to the date of her death. To review such ruling this appeal is prosecuted.
We are not concerned here with the question whether a compensation award survives upon the death of the beneficiary or ceases with it. That is a matter dependent upon the provisions of the compensation statutes of the several jurisdictions. In England and Ohio, perhaps also in other states, the rule is that an award to a wholly dependent person, for a stated period, vests in the dependent from the date thereof, and constitutes a right transmissible as property, and upon the death of such dependent, before the expiration of the period of the award, his or her personal representative is entitled to the balance thereof, if any, remaining unpaid. United Collieries, Ltd., v. Simpson, [1909] A. C. 383; State ex rel. Munding v. Industrial Commission of Ohio, 92 Ohio St. 434, 111 N.E. 299, L. R. A. 1916D 944, Ann. Cas. 1917D, 1162, and note 13 N.C. C. A. 713. But in this state the statute is clear and explicit as to the termination of the right to a compensation award. Clause (c), § 33, c. 15P, Code 1918, provides:
"If the deceased employé leave a widow or invalid widower, the payment shall be twenty dollars per month until the death or remarriage of such widow or widower."
The amendment of 1919, clause (d), section 33, c. 131, Acts 1919, makes no change in this respect. Hence there can be no question that the death of the widow of Vito Gasparro terminated all her right, as well as that of her estate, in and to the compensation fund of this state, so far as payments accruing after her death are concerned; and as to them petitioner makes no claim. Murphy's Case, 224 Mass. 592, 113 N.E. 283; Matecny v. Vierling Steel Works, 187 Ill.App. 448; 1 Honnold on Workmen's Compensation p. 252, § 79.
But petitioner insists that he is entitled, on behalf of the estate of the deceased beneficiary, to receive such compensation awards as had accrued, but remained...
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