Smith v. State Highway Comm'n

• Decision Date: 21 February 1922
• Docket Number: No. 11289.,11289.
• Court: Indiana Appellate Court
• Parties: SMITH et al. v. STATE HIGHWAY COMMISSION.

78 Ind.App. 301

134 N.E. 225

SMITH et al.

v.STATE HIGHWAY COMMISSION.

No. 11289.^*

Appellate Court of Indiana, Division No. 2.

Feb. 21, 1922.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Harry O. Smith, guardian, and others, to recover compensation for the death of William H. Joyner, opposed by the State Highway Commission, as employer. From an award by the Industrial Board giving the two surviving dependents only two-thirds of the maximum compensation for death after the death of the third dependent, the applicants appeal. Board directed to modify the award, and the award as modified affirmed.

Oren O. Swails, of Seymour, for appellants.

U. S. Lish, Atty. Gen., and D. F. Stansbury, of Indianapolis, for appellee.

DAUSMAN, C. J.

On September 7, 1921, the full Industrial Board made a finding which establishes the following facts: On November 8, 1920, one William H. Joyner, while in the employment of the State Highway Commission, received an injury by accident which resulted in his almost instant death. The deceased workman's average weekly wage was $21. He left surviving as his sole dependents his wife, Leona Joyner, his daughter, Anna Marie Joyner, one year of age, and William H. Joyner, Jr., a posthumous child, who was born April 21, 1921, and died June 21, 1921.

The board awarded compensation for the widow at the rate of $3.85 per week, beginning on November 8, 1920, for the daughter at the rate of $3.85 per week, beginning November 8, 1920, and for the deceased posthumous child at the rate of $3.85 per week, beginning April 21, 1921, and to continue to and including June 21, 1921.

The appellants filed a motion to modify the award so as to give compensation for Leona at the rate of $3.85 per week from November 8, 1920, to June 21, 1921, and thereafter at the rate of $5.775 per week, for Anna Marie at the rate of $3.85 per week from November 8, 1920, to June 21, 1921, and thereafter at the rate of $5.775 per week, and for the posthumous child at the rate of $3.85 per week from November 8, 1920, to June 21, 1921.

[1] Appellants' first contention is that compensation should have been awarded for the benefit of the posthumous child, beginning at the death of its father, even though the child was then unborn. The Legislature has declared that the term “child” as used in section 38 of the Workmen's Compensation Law, (Laws 1919, c. 57) “shall include posthumous children.” However, we are of the opinion that the Legislature did not intend that compensation should be awarded to a posthumous child prior to its birth.

Appellants' second contention is that during the lifetime of the posthumous child it was proper to divide the compensation fund among the three living dependents in equal shares, but that during the compensation period preceding the birth of the posthumous child, and during the compensation period following the death of that child, the compensation fund should be divided between the other two dependents in equal shares. On the contrary, counsel for the appellee contend that the employer's only liability with respect to the posthumous child began at the birth of that child and terminated at its death; that the share awarded the posthumous child “lapsed” simultaneously with its death; that the death of the child did not operate to increase the shares of the other dependents; and that the only effect of the death of the child was to relieve the employer permanently of liability for the payment of one-third of the total compensation for which the employer would have been liable had the child lived.

[2] As applicable to this case, the statute provides that “a weekly compensation equal to fifty-five per cent. of the deceased's average weekly wages” for 300 weeks shall be paid in equal shares “to all dependents of the employee wholly dependent upon him for support at the time of his death.” Section 37, W. C. A. (Acts 1919, p. 164). The statute also provides that-

“If the employee leaves dependents only partially dependent upon his earnings for support at the time of his injury, the weekly compensation to those so dependent shall be in the same proportion to the weekly compensation of persons wholly dependent as the average amount contributed weekly by the deceased to such partial dependent bears to his average weekly wages at the time of the injury.” Section 37, supra.

The statute further provides that-

“If there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partially dependent shall receive no part thereof.

If there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among the partial dependents according to the relative extent of their dependency.”...