Smith v. City of Bluffton
| Decision Date | 07 December 1923 |
| Docket Number | No. 11753.,11753. |
| Citation | 80 Ind.App. 574,141 N.E. 532 |
| Parties | SMITH et al. v. CITY OF BLUFFTON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceeding under the Workmen's Compensation Act by Mary J. Smith and another to review an award of the Industrial Board for the death of Milton J. Smith, opposed by the City of Bluffton. From an award denying further compensation, except a sum due at date of death of claimant's mother, claimants appeal. Affirmed.
A. W. Hamilton and Fred A. Wiecking, both of Bluffton, for appellants.
Turner, Adams, Merrell & Locke and Paul E. Beam, all of Indianapolis, for appellee.
Action before the Industrial Board. An award had formerly been made to appellant Mary J. Smith, a minor child, and Mary E. Smith, wife, sole dependents of Milton J. Smith, who was killed while in the employment of appellee. On August 18, 1921, Mary E. Smith qualified as guardian of Mary J. Smith, minor, and received the award. Mary J. Smith became 18 years of age on November 15, 1922, and Mary E. Smith died on November 27, 1922. Appellee filed a petition with the Industrial Board on January 13, 1923, for a review of the award, on account of the change in conditions as above set out. Sanford Smith, as administrator of the estate of Mary E. Smith, deceased, filed on April 13, 1923, an intervening petition as such administrator, claiming the residue of the said award as due the heirs at law of Mary E. Smith, deceased. From an award of the Industrial Board in favor of appellee, denying further compensation than $36.09 due at the date of the death of Mary E. Smith, appellants appeal.
[1] There is but one question presented for our consideration: Did the award to Mary E. Smith terminate with her death, November 27, 1922, or did it survive to her legal or personal representatives? Appellants, contending that there is a vested interest in the award, cite, to sustain their contention, Wenning v. Turk (Ind. App.) 135 N. E. 665. In that case there was the death of an injured employee, who was receiving compensation; the death being from a cause other than the injury. He left surviving him his widow and a child 5 years of age as his dependents. After quoting section 36 of the Workmen's Compensation Act (Laws 1915, c. 106) which is as follows:
“When an employee receives or is entitled to compensation under this act for an injury and dies from any other cause than the injury for which he was entitled to compensation, payment of the unpaid balance of...
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... ... benefit of the dependents. Smith v. Boiler Works ... Co., 104 Kan. 591, 180 P. 259 ... In our ... own act there is no ... 587; Wenning et al. v. Turk et al., ... 78 Ind.App. 355, 135 N.E. 665; Smith v. Bluffton, 80 ... Ind.App. 574, 141 N.E. 532; Wozneak v. Buffalo Gas ... Co., 175 A.D. 268, 161 N.Y.S. 675; ... ...
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Double v. Iowa-Nebraska Coal Co.
... ... sense that, upon death, it passes to his heirs or personal ... representative. See Smith v. City of Bluffton, 80 ... Ind.App. 574, 141 N.E. 532; and note at 29 A.L.R. 1426. It is ... ...
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Double v. Iowa-Nebraska Coal Co.
...of compensation as a vested right in the sense that upon death it passes to his heirs or personal representative. See Smith v. City of Bluffton (Ind. App.) 141 N. E. 532, and note to 29 A. L. R. 1426. It is such a right, however, if accrued, that could not be legally abridged by subsequent ......
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