OPINION
HARVEY, J.:
This is
an action by a widow and sole dependent of a deceased workman
under the workmen's compensation act. From a judgment in
her favor defendant has appealed. The sole complaint is that
the court erred in rendering a lump-sum judgment. It is
contended that under the proceedings in this case the court
was without power or jurisdiction to render a lump-sum
judgment in view of the fact that there had been an
arbitration in the case and the arbitrator's award
provided for periodical payments, and there had been no
proceedings to review or modify the award.
The
facts are substantially as follows: On September 21, 1925,
Sam Shumona, while in the employ of Armour & Company, and
both operating under the workmen's compensation act,
sustained an injury by accident, arising out of and in the
course of his employment, which resulted in his death four
days later. He left the plaintiff, Sophia
Shumona, his widow, as his sole dependent. On October 13,
1925, she made written claim for compensation. The writing
also stated:
"You
are further notified that I, the undersigned, object to
submitting my claim as a dependent of Sam Shumona for
compensation to any committee, representative of Armour &
Company, organized for the purpose of settling disputes under
the 'workmen's compensation act of the state of
Kansas.' You are further notified that unless you do
within five (5) days consent in writing to the arbitration of
my claim for compensation as sole dependent of Sam Shumona
under said compensation act of the state of Kansas, I will
take as true said failure as being a refusal of Armour &
Company to consent to arbitration of my claim for
compensation and will institute suit in the district court of
Wyandotte county, Kansas, against said Armour & Company
as defendant on account of any claim hereinbefore referred
to."
On
October 19 defendant replied as follows:
"This
is to advise you that in the claim of Sophia Shumona for
compensation under the workmen's compensation act of the
state of Kansas, Armour & Company consents to the
appointment of an arbitrator to determine such questions as
the workmen's compensation act of the state of Kansas
provides shall be submitted to an arbitrator.
"However,
in so consenting, Armour & Company does not admit that
Sam Shumona received any injury by accident arising out of
and in the course of his employment with Armour & Company
which in any way caused or contributed to the death of said
Sam Shumona, and expressly denies that Sam Shumona received
any injury by accident arising out of or in the course of his
employment, which caused or in any way contributed to the
death of Sam Shumona."
On
November 9 plaintiff filed in district court the following
application:
"Comes
now the above-named petitioner and prays the court to appoint
an arbitrator for the purpose of ascertaining the amount of
compensation due to the above-named widow as claimed by her
against the above-named respondent and in this application
alleges that on or about September 21, 1925, at about 10
o'clock p. m., her husband, Sam Shumona, now deceased,
received personal injuries by accident, arising out of and in
the course of his employment, and as a direct cause of said
personal injuries received as aforesaid, said Sam Shumona
died on Friday, September 25, 1925, and that she has given
notice to said respondent that she would, on this date, apply
to this court for the appointment of an arbitrator, to hear
and determine her claim for compensation under the
'workmen's compensation statutes,' 'where
death results from injury.'
"Wherefore:
Petitioner prays this honorable court to appoint some
suitable person as arbitrator, to hear and determine her
claim for compensation under the death-benefit statute of the
'workmen's compensation law,' to fix the amount of such death benefit she is entitled to, if
any, and to determine such other matters as may properly come
before said arbitrator, arising out of said claim."
Thereafter
the following answer to such application was filed:
"Armour
& Company, for answer to the application for the
appointment of an arbitrator herein by Sophia Shumona, says
that it consents to the appointment of an arbitrator to
determine such questions as the workmen's compensation
act of the state of Kansas provides shall be submitted to an
arbitrator, but it expressly refuses to consent to the
submission to the arbitrator of any questions other than
those questions which the workmen's compensation act
provides shall be determined by an arbitrator.
"For further answer to said application for the
appointment of an arbitrator, Armour & Company says that
in so consenting to the appointment of an arbitrator, it does
not admit that Sam Shumona received any injuries by accident
arising out of and in the course of his employment with
Armour & Company which in any way caused or contributed
to the death of said Sam Shumona, and it expressly denies
that Sam Shumona received any injuries by accident arising
out of and in the course of his employment, which caused or
in any way contributed to the death of Sam Shumona, and
suggests to the court that before the appointment of an
arbitrator herein, the claimant should, by proper
proceedings, be required to establish the fact that Sam
Shumona received an injury by accident which arose out of and
in the course of his employment with Armour & Company
which caused or contributed to the death of said Sam
Shumona."
On
November 10, both parties appearing, the court made an order
appointing James T. Cochran, as arbitrator in the
above-entitled matter, "to hear said claim for
compensation under the 'workmen's compensation
statute,' to fix the amount of compensation she is
entitled to, if any, and to determine such other matters as
may properly come before said arbitrator arising out of said
claim."
On
November 16 the hearing was had before the arbitrator, both
parties appearing. It was admitted that the average yearly
earnings of Sam Shumona for three years preceding his death
were $ 1,560. The employer requested that the arbitrator
determine the period for which payments for compensation
should continue. The arbitrator's report, filed November
24, states:
".
. . . the arbitrator determines the amount of compensation to
be the sum of $ 3,800, payable $ 9.15 each week, commencing
October 2, 1925, one week from the death of Sam Shumona.
There being due at this time seven (7) weeks compensation, or
$ 64.05, for which amount a lump-sum award is made, payments
of compensation to continue until the entire amount awarded
is paid in full.
"This
award is made subject to the further disposition of the case
by the court, assuming that the judgment of
the court or jury shall hereafter be made on the other
questions reserved by the court and not before the
arbitrator, and if such questions should be decided and
adjudicated in favor of the claimant, then and only then will
this award be in full force and effect."
On
January 19, 1926, Sophia Shumona filed her petition in the
district court to recover compensation. It contained the
usual allegations for such an action, and concerning the
matter of arbitration it was averred:
"That
petitioner has offered and proposed to arbitrate her claim
for compensation under said 'workman's compensation
law' but respondent, by and through its attorneys, Thomas
M. Van Cleave, Edwin S. McAnany and Maurice L. Alden, has
refused to arbitrate any part of said claim except the amount
of wages that Sam Shumona earned for fifty-two weeks prior to
the happening of the accident and death as hereinbefore
referred to. That petitioner desires and has heretofore
requested and demanded that the question which respondent
refused to submit to an arbitrator, be heard and determined
by a jury as the 'workman's compensation act of the
state of Kansas' provides."
The
prayer was for a decree for plaintiff--
"
. . . and that all other questions arising out of and under
the 'workmen's compensation act of the State of
Kansas' excepting the amount of wages earned by Sam
Shumona, deceased, for fifty-two weeks prior to the happening
of the accident and death, referred to herein, which was
submitted to arbitration, be adjudicated in this action, and
for the petitioner's costs herein expended."
The
employer's answer admitted the employment of the workman,
his death, that the parties were operating under the
workmen's compensation act, that claim for compensation
had been made, and that plaintiff had "offered and
proposed to arbitrate such claim for compensation under such
workmen's compensation act," denied all other
allegations of the petition, and--
"
. . . specifically denies that it has refused to arbitrate
any part of petitioner's claim for compensation, except
the amount of wages Sam Shumona earned for fifty-two weeks
prior to the happening of the death of Sam Shumona, and
states that it has consented to arbitrate such...
