Sudraski. v. State Comp. Comm'r

• Court: West Virginia Supreme Court
• Writing for the Court: HATCHER.
• Citation: Sudraski. v. State Comp. Comm'r, 181 S.E. 545, 116 W.Va. 441 (W. Va. 1935)
• Decision Date: 24 September 1935
• Docket Number: (No. 8172)
• Parties: Theophil Sudraski et al. v. State Compensation Commissioner

116 W.Va. 441

Theophil Sudraski et al.

v.State Compensation Commissioner

(No. 8172)

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1935.

Decided September 24, 1935.

1. Limitation of Actions

A limitation qualifying a special statutory right is generally held to be unaffected by the disabilities and excuses which allay ordinary statutes of limitation, and to be such an inherent part of the statute which creates the right, that the right itself does not survive the limitation.

2. Statutes

When the statute requires a full and correct report of an event, a statement known to the reporter to be incomplete and misleading, may be treated as no report.

Appeal from order of Compensation Commissioner.

Proceeding under the Workmen's Compensation Act by Theophil Sudraski and others for the death of Walter Sudraski, employee, opposed by the Arkwright Coal Company, employer. Prom an order of the Compensation Commissioner rejecting the claim, claimants appeal.

Reversed and remanded.

Melville Stewart, for appellants.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for respondent.

Hatcher, Judge:

This is a claim for compensation by 'die three infant children of Walter Sudraski, who was killed in 1930, while working in Monongalia County for the Arkwright Coal Company, a subscriber to the Workmen's Compensation Fund. The claim was not filed until 1934, and was rejected by the Compensation Commissioner as barred, because not filed within six months after the fatality, as the statute provides.

The facts relating to the claim are not in controversy.

During the time Sudraski worked for the Arkwright Company he used the alias John Rice, and his children lived in Michigan with their mother from whom he was divorced. He was killed on June 27, 1930. "Immediately thereafter" his sister came from Detroit, identified the body as that of Walter Sudraski, and informed E. F. Bowlby, an officer of the Arkwright Company, of Sudraski's true identity and of the existence of his three dependent children in Michigan. Funeral rites were held over Sudraski's body in his true name. His death was reported to the State Health Department under that name. The employer, however, reported the casualty to the Commissioner as that of John Rice. The report was dated June 28th and received by the Commissioner on July 1st. It mentioned no dependents. About July 15, 1930, Sudraski's divorced wife approached Bowlby in the interest of the three children and demanded their support and maintenance as provided by law. Bowlby made a note of that demand, but informed her "there was nothing coming to these children." On August 14, 1930, a Michigan attorney wrote to the Arkwright Company that he represented Sudraski's children and requested the necessary blanks upon which to apply for compensation. The reply of the company, written by Bowlby, merely stated that no such person as Walter Sudraski appeared on the company's payroll. The attorney wrote again on August 26th, informing Bowlby that Sudraski had worked under the name of John Rice. Bowlby replied tersely that their records relating to John Rice were " closed.'' On September 13th, the Michigan attorney referred the claim to a firm of Morgantown attorneys who replied that they represented the Arkwright Company and could not prosecute the claim, but volunteered the following: "We doubt if the state will pay anything to the heirs of Walter Sudraski, even if there is anything remaining after the funeral expenses, which up to this time have not been paid."

On November 12, 1930, the Compensation Commissioner called on the Arkwright Company for information as to the dependents of John Rice, deceased, stating that if he had dependents, application should be made promptly since the six-months period would expire on December 27th. Bowlby answered for the company, as follows: '' According to our employment record made out at the time this party went to work and signed by himself, there were no dependents but we understood that after the accident there was some question as to the correct name of the party. Therefore, the...