Polk v. Western Bedding Co.

• Decision Date: 30 June 1941
• Docket Number: 157-1940
• Citation: Polk v. Western Bedding Co., 145 Pa.Super. 142, 20 A.2d 845 (Pa. Super. Ct. 1941)
• Parties: Polk, Appellant, v. Western Bedding Company et al
• Court: Pennsylvania Superior Court

20 A.2d 845

145 Pa.Super. 142

Polk, Appellant, v. Western Bedding Company et al

No. 157-1940

Superior Court of Pennsylvania

June 30, 1941

Argued March 13, 1941.

Appeal from judgment of C. P. No. 2, Phila. Co., June T., 1939, No 5849, in case of Caroline Polk v. Western Bedding Company et al.

Appeal by defendant from award of Workmen's Compensation Board.

The facts are stated in the opinion of the Superior Court and in the opinion of the lower court, reported in 38 D & C 73.

Appeal sustained, decision of board reversed, and judgment entered for claimant in accordance with opinion by Gordon, P. J Claimant appealed.

Error assigned, among others, was the action of the court below in reversing the decision of the board.

Judgment affirmed.

George B. Clothier, with him David F. Maxwell, and Edmonds Obermayer & Rebmann, for appellant.

George H. Detweiler, with him Robert A. Detweiler, Sylvia E. Detweiler and Charles W. Sweeney, for appellee.

Before Keller, P. J., Cunningham, Stadtfeld, Rhodes and Hirt, JJ.

OPINION

Rhodes, J.

This is a workmen's compensation case.The only question involved is whether claimant's admitted right to compensation for her husband's death is to be computed according to the schedule for compensation in force when he was injured (Act ofJune 2, 1915, P. L. 736, § 307, as further amended by Act of April 26, 1929, P. L. 829, § 3,77 PS §§ 542,561,562,581), or according to the schedule in force at the time of his death (Act ofJune 4, 1937, P. L. 1552, § 1, 77 PS §§ 542, 561, 562, 581).

On December 2, 1937, claimant's husband, Ellis Polk, was injured in an accident sustained in the course of his employment.His death resulted therefrom on January 7, 1938.He was survived by his widow, the claimant, and two minor children.The Workmen's Compensation Act of June 2, 1915, P. L. 736, as further amended by the Act of April 26, 1929, P. L. 829, 77 PS § 1 et seq., was in force at the time deceased was accidentally injured; and the Act of June 4, 1937, P. L. 1552, 77 PS § 1 et seq., which reenacted, amended, or further amended the Act of June 2, 1915, P. L. 736, became effective on January 1, 1938, six days before he died.The latter substantially increased the rate of compensation payable to dependents.^[1]

The referee awarded compensation based on the schedule existing at the time of the injury.Claimant appealed to the Workmen's Compensation Board, which set aside the award made by the referee, and awarded compensation at the rate specified in the amendatory Act of 1937.An appeal was then taken by defendant to the court of common pleas, which reversed the board, and entered judgment for claimant computed on the schedule in force at the time of the accident.Claimant has appealed.

When the employer and the employee here accepted the provisions of the Workmen's Compensation Act of 1915, as amended, 77 PS § 1 et seq., their relations became contractual.^[2]Anderson v. Carnegie Steel Co., 255 Pa. 33, 39, 99 A. 215;Gairt v. Curry Coal Mining Co. et al., 272 Pa. 494, 498, 116 A. 382;Ford v. A. E. Dick Co., 288 Pa. 140, 151, 135 A. 903.The contract bound the employee's dependents as well; and if they are entitled to compensation for his death it must be through him under that contract.Liberato et al. v. Royer & Herr et al., 81 Pa.Super. 403, affirmed, 281 Pa. 227, 126 A. 257, and also in 270 U.S. 535, 46 S.Ct. 373, 70 L.Ed. 719.See, also, Delaney etal. v.Philadelphia & Reading Coal & Iron Co., 272 Pa. 578, 581, 116 A. 537."This contract [binding employee's dependents]he is authorized by the statute to make.What he acquires by the contract is the right to compensation under the statute for any injury which he may sustain in the course of his employment, and the certainty that, in case of his death from such injury, compensation shall be made to his dependents in the manner by the statute provided ....": Liberato et al. v. Royer & Herr et al., supra, 81 Pa.Super. 403, at page 409.Section 303 of the Act of June 2, 1915, P. L. 736, 77 PS § 481, provided: "Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband, widow or widower, next of kin and other dependents."

The statute in force at the time of the accident formed a part of the contract of employment, and governs the rate of compensation to the deceased employee's widow and other dependents.The court below, in an opinion by Gordon, Jr., P. J., properly said:

"The claimant is not entitled to compensation because her husband died of injuries received in an accident, but because he died of injuries accidentally suffered in the course of his employment, and at a time when he had a contract of hiring which provided that in the event of death his widow should receive the compensation specified therein.If we were to hold that she suffered no injury until her husband died, she would have no right to compensation, because, on that date, no accident happened in the course of his employment, and this necessary prerequisite to fixing liability on the defendant would be wanting.On the other hand, had he died while he was actually employed, of injuries suffered previous to his employment, the widow would not have been entitled to compensation, because, the accident which caused death would not in that event have happened in the course of his employment, notwithstanding that death did.Both circumstances, namely, the accident in the course of employment, and the death as a result thereof, must be present to impose liability on an employer; and, as each day's employment is, in effect, a new employment based upon a new contract of hiring, the first of these circumstances would be wanting if the injury to the widow is to be referred to the contract in force at the date of death.It is only by attributing the death to the employment at the date of the accident that all the requirements for fixing responsibility on the employer can be met."

When deceased sustained accidental injuries in the course of his employment, the act then in force and a part of the contract of employment governed the injured employee's right to be paid compensation and the extent thereof.Likewise, we think the obligations of the employer to pay compensation to the dependents of the employee in case of the death of such injured employee, being substantive obligations, were fixed and determined by the statute in force at the time of the injury.SeeSchmidt v. O. K. Baking Co., 90 Conn. 217, 96 A. 963;Quilty v. Connecticut Co., 96 Conn. 124, 113 A. 149.

It is true that claimant, on behalf of herself and dependent children, could acquire no right of action for compensation until the death of her husband as the result of his accidental injuries sustained in the course of his employment.She may have had an inchoate right, but had he lived compensation would have been payable to him alone in accordance with the provisions of the act in force at the time of his injury.Upon her husband's death claimant and her dependent children became entitled to receive compensation from her husband's employer, the defendant, to the extent of its substantive obligation to pay them as fixed by the statute in force at the time deceased was accidentally injured in the course of his employment with defendant.But in no event would she have a right of action against defendant employer for the death of her husband unless it was the result of a compensable injury.Section 306(f) of the Act of June 2, 1915, P. L. 736, as amended by the Act of April 13, 1927, P. L. 186, § 1,77 PS § 541, provided: "Should the employe die from some other cause than the injury, the liability for compensation shall cease."

The cause of action in the present case is the accident which resulted in an injury to deceased in the course of his employment, and it follows that the law existing at that time is determinative of the rights and obligations of the present parties arising therefrom.Deceased's death was the consequence of a previous cause, to wit, an injury by an accident in the course of his employment.It was upon his death that the right of claimant to make claim for compensation for herself and children accrued, but it is only because deceased had first sustained the accident that claimant is entitled to any compensation.Manifestly his death was not itself the cause of action, but merely gave her the right to receive compensation through him under his contract of employment.It is pertinent to refer to the title of the Workmen's Compensation Act of June 2, 1915, P. L 736, which reads as follows: "Defining the liability of an employer to pay damages for injuries received by an employee in the course of employment; establishing an elective schedule of compensation; and providing procedure for the determination of liability and compensation...