State v. C. C. Anderson Co., of Emmett

• Decision Date: 17 January 1944
• Docket Number: 7124
• Citation: 145 P.2d 237,65 Idaho 400
• Parties: STATE OF IDAHO, on the relation of CALVIN E. WRIGHT, State Auditor, Respondent, v. C. C. ANDERSON COMPANY OF EMMETT, Employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

145 P.2d 237

65 Idaho 400

STATE OF IDAHO, on the relation of CALVIN E. WRIGHT, State Auditor, Respondent, v. C. C. ANDERSON COMPANY OF EMMETT, Employer, and IDAHO COMPENSATION COMPANY, Surety, Appellants

No. 7124

Supreme Court of Idaho

January 17, 1944

1. Workmen's compensation

On appeal from an award of the Industrial Accident Board, where board's ruling was not assigned as error or discussed the ruling was not before the Supreme Court for review.

2. Workmen's compensation

On appeal from an award of the Industrial Accident Board, where authority was not cited and bare specification that the board erred in a finding was not otherwise mentioned except in the assignments of error, the point was not before the Supreme Court for review.

3. Workmen's compensation

The compensation statute providing for payment by employer of $1,000 into the state treasury where there are no dependents of a deceased employee is constitutional. (I.C.A., sec 43-1101, as amended by Sess. Laws 1935, chap. 147, sec. 1.)

4. Workmen's compensation

The compensation statute providing for payment by employer of $1,000 into state treasury, where there are no dependents of a deceased employee, contemplates that compensation should be paid by the employer, or his surety, for every employee killed by accident while engaged in course of his employment and where there are no dependents who can qualify within the definition of the statute, the state as the sovereign or parens patriae asserts its right to recover for the death of an employee. (I.C.A., sec. 43-1101, as amended by Sess. Laws 1935, chap. 147, sec. 1.)

5. Workmen's compensation

Under compensation statute providing for payment by employer of $1,000 into the state treasury, where there are no dependents of deceased employee, such employee's funeral expenses are not deductible from the compensation fixed for the state. (I.C.A., sec. 43-1101, as amended by Sess. Laws 1935, chap 147, sec. 1.)

6. Workmen's compensation

The compensation statute providing for payment by employer of $1,000 into state treasury, where there are no dependents of deceased employee is not construable strictly against the state, since it does not impose a "tax" or embody "liability," but in construing the statute the intention of the Legislature is ascertained as expressed in the words thereof and for this purpose the Compensation Act is considered as a whole. (I.C.A., sec. 43-1101, as amended by Sess. Laws 1935, chap. 147, sec. 1.)

7. Workmen's compensation

Under compensation statute providing for payment by employer of $1,000 into state treasury, where there are no dependents of deceased employee, employer's medical and hospital expense for such employee were not deductible from compensation fixed for the state. (I.C.A., sec. 43-1101, as amended by Sess. Laws 1935, chap. 147, sec. 1; secs. 43-1103, 43-1107 and 43-1106, as amended by Sess. Laws 1937, chap. 134.)

Appeal from an award of the Industrial Accident Board ordering payment of $ 1000.00 to the state for the benefit of the Industrial Administration Fund under the provisions of sec. 43-1101, I.C.A., as amended by 1935 Session Laws (regular session) chap. 147, p. 364, without deduction for hospital, medical or burial expenses paid for the benefit of the deceased employee.

Affirmed.

Spencer Nelson for appellants.

An employer paying medical, hospital and nursing expenses on behalf of an employee before his death is not required to pay the state an additional $ 1,000 on his death but is entitled to deduct these expenses from the $ 1,000 payable to the state. (State v. Potlatch Forests, Inc., 60 Ida. 797; Pacific Employers Insurance Company v. Industrial Accident Commission, (Cal.) 75 P.2d 1058, 1063; Royal Indemnity Company v. Industrial Commission, (Colo.) 293 P. 342.)

Appellants under the Idaho Compensation Act are not required to pay $ 1,000 additional to the state besides the $ 200.00 burial expenses but are entitled to deduct burial expenses to the amount of $ 200.00 from the $ 1,000 payable to the state. (43-1101, I.C.A., subd. 6; 43-1106, I.C.A.; Ala. 7557; Revised Code of Arizona, art. 5, chap. 24, 1438, subd. 8; Colorado Statutes Annotated 9759; Revised Code of Delaware 175-10; General Digest 1943, p. 1633, Ala., Fla., Ill.; 59 C.J. 1129.)

Bert H. Miller, Attorney General, and J. R. Smead, Assistant Attorney General, for respondent.

Medical and hospital expense, and burial expense, are required to be paid in addition. (I.C.A., secs. 43-1107, 43-1101.)

By "an analogy of reasoning" medical and hospital expense should not be deducted from the amount paid the state in a case of non-dependency. (State v. Potlatch Forests, Inc., 60 Ida. 797.)

It has recently been held that such payments are not included in the word "compensation." (Marshall v. Pletz, U.S. , 87 L. ed. 259, 263, (Advance Sheets No. 6.)

Burial expenses are not deductible. (State v. Potlatch Forests, Inc., supra; I.C.A., sec. 43-1101; In re State Industrial Commission, 165 N.Y.S. 967.)

Such expenses are not included in "compensation." ( Barber v. Estey Organ Co., (Vt.) 135 A. 1, 2; Snow v. U. S. R. R. Adm., 204 N.Y.S. 514.)

Dunlap, J. Holden, C.J., Ailshie, Budge and Givens, JJ., concur.

OPINION

Dunlap, J.

Two days after an industrial accident, George Schrecongost an employee of C. C. Anderson Company of Emmett, as a result thereof, died. He had no dependents, so far as is known, nor was any claim of compensation filed by anyone asserting dependency. Idaho Compensation Company, one of the appellants here, is the insurance carrier for the Anderson Company, and paid medical and hospital expenses in the sum of $ 219.65, and also burial expenses in the sum of $ 200.00.

After the lapse of more than a year the Industrial Accident Board entered an order for payment to the state, for deposit in the Industrial Administration Fund of the state, the sum of $ 1000.00.

Thereafter, appellants filed application for hearing, treated herein as an application for modification of an award, setting up payment of the medical, hospital and burial expenses, and alleged they were entitled to have the payments thus made, deducted from the $ 1000.00 ordered by the Board to be paid into said Industrial Administration Fund.

Appellants also contended before the Board, that it had no jurisdiction to determine liability of an employer and surety for payment into the fund, for the reason that the board has a direct interest in requiring such payments; it was also contended that since the state had filed no claim for the $ 1000.00 payment, the board's order was unfounded, and that appellants are not liable to make any payment to the state.

The board ruled against appellants on all these contentions.

While in the opening paragraph of its brief appellants state:

"The question on appeal from the Industrial Accident Board is whether or not defendants are entitled to deduct medical and burial expenses of the deceased George Schrecongost, from the $ 1000.00 payable to the State of Idaho," they assign as error the holding of the board in finding it had no direct interest in the money paid to the State Treasurer for deposit in the Industrial Administration Fund. Appellants cite no authorities on the point and do not discuss it in their brief.

Neither do they assign as error or discuss the board's ruling on the point raised before the board, to effect that the order for the $ 1000.00 payment was unfounded, and their non-liability therefor because of the failure of the state to file a claim. Therefore, this ruling is not before us for consideration. (Purdy v. Steel, 1 Ida. 216; N. Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 P. 789; Glover v. Brown, 32 Ida. 426, 184 P. 649; Bicandi v. Boise Payette Lbr. Co., 55 Ida. 543, 44 P.2d 1103; Coeur d' Alenes Lead Co. v. Kingsbury, 56 Ida. 475, 55 P.2d 1307.) However, the identical question was before us and determined in State v. Potlatch Forest, Inc., 60 Ida. 797, 97 P.2d 394.

After hearing the application for modification (the facts being stipulated) the board made comprehensive Findings of Fact and Conclusions of Law, containing rather complete and informative exposition of its views of the law applicable, and based thereon, entered an award in favor of the state, directing the payment of the $ 1000.00 provided by paragraph 6 of sec. 43-1101, I.C.A., as amended by 1935 Regular Session Laws, chap. 147, sec. 1, p. 364, without the deductions claimed.

From this award the appeal is taken.

As appellants do not cite authority or otherwise mention, except in the assignments of error, the bare specification that the board erred in finding it had no direct interest in the money paid to the state treasury, for deposit in the Industrial Administration Fund, this point is not before us for consideration. (In re: Drainage District No. 3, Ada County, 43 Ida. 803, 255 P. 411; Burton v. Bayley, 50 Ida. 707, 300 P. 359; McMillan v. Sproat, 51 Ida. 236, 4 P.2d 899; Louk v. Patton, 58 Ida. 334, 73 P.2d 949.) Especially since it would appear from the opening paragraph of appellants' brief above quoted, that it is not one of the questions to be decided on the appeal. (See Mountain States Implement Co. v. Arave, 49 Ida. 710, 291 P. 1074.)

This brings us to the question as to whether or not appellants were entitled to deduct from the $ 1000.00 payment required to be made to the state, under the provisions of our statute above cited, the amounts paid by appellants for hospital, medical and burial expenses.

We will first direct our attention to the burial expense item.

Sec 43-1101, I. C. A., as amended by 1935 Session Laws (Regular Session), chap. 147, p. 364, provides in part, as follows: "If death results from the injury within two years the...