
    The American Rolling Mill Co. v. Earnhart.
    (Decided December 5, 1932.)
    
      Mr. B. F. Bar wits, for plaintiff in error.
    
      Mr. C. W. Elliott and Mr. Fred B. Cramer, for defendant in error.
   Hamilton, J.

This action was tried in the court of common pleas on an appeal from the finding of the Industrial Commission of Ohio denying the claimant, Alice Earnhart, the right to participate in the state insurance fund, as a partly dependent person. The claim was rejected by the commission on the ground that she was not shown to be a partly dependent person.

The American Rolling Mill Company, defendant below, plaintiff in error here, was a self-insurer. Alice Earnhart, the claimant, was the mother of Okie Argo.

It is admitted Argo was killed by accident arising out of his employment with the American Rolling Mill Company, and in the course of such employment.

The case was tried to a jury, and it returned a verdict finding the claimant, the mother of Okie Argo, to be a partly dependent person. The American Rolling Mill Company prosecutes error to this court, seeking a reversal of that finding by the jury.

It appears from the record that Argo was killed September 19, 1929, leaving a widow and infant child. Shortly after the claim was filed an award of $18.75 per week for 346 2/3 weeks was made to the widow and infant son of decedent by the Industrial Commission. By the order, one-half of the award was payable to the widow, and one-half to the son. April 23, 1930, the widow of the employee died, and, thereupon, at the instance of the American Rolling Mill Company, the commission modified its award and made the entire $18.75 payable to the infant son. November 24, 1930, the infant son died. After the death of the son, the rolling mill company, with the consent of the commission, discontinued the weekly payments altogether, but did pay, by order of the commission, the funeral expenses of the widow and infant son.

The payments made left an unpaid balance of the award of $5,090.25. Up to this time, the claimant in this case, Alice Earnhart, the mother, had not filed any claim for an award by reason of being a partly dependent person.

On February 15, 1931, which was within the two-year period prescribed by the statute, the mother filed with the Industrial Commission an application for an award as a partly dependent person of the deceased. As heretofore stated, the application was denied by the Industrial Commission, and an appeal taken to the court of common pleas at which the finding of the jury was made.

There are several specifications of error, which may be summed up in the claims that the finding of the jury is against the weight of the evidence and that the claimant is not entitled to participate in the state insurance fund under the law.

We have read the record of the evidence adduced to show that claimant was a partly dependent person. While the evidence is not clear as to the amount of dependency of the mother, there is evidence that the son contributed to her support and that she depended to a certain extent on him for the payment of the house rent, for the groceries, and perhaps for some of her clothing. The amount contributed is not definite and certain, but there is sufficient in the record to show that she was partly dependent. Her husband was a confirmed invalid and unable to earn anything. She did not receive any support other than from the son, with the exception of a few dollars which she was able to earn herself, and some scant charitable assistance.

We are of opinion that the jury was justified in finding under the evidence that she was a partly dependent person.

The question of law which counsel for plaintiff in error claims bars defendant in error from participating in the state insurance fund may be summed up in the claim that the original award to the wholly dependents exhausted the power of the commission; that there could not be a full award to the wholly dependents and an additional award later to the partly dependents.

Counsel cites the case of Industrial Commission v. Wagar, 14 Ohio App., 34, for support of this proposition. The Wagar case, however, was based upon the decision of the Supreme Court in the case¡ of State, ex rel. Munding, Admr., v. Industrial Commission, 92 Ohio St., 434, 111 N. E., 299, L. R. A., 1916D, 944, Ann. Cas., 1917D, 1162. The holding in the Munding case was that the award having been made to a dependent, upon the death of the dependent any unexpended balance of the award is payable to the estate of the dependent. The Munding case, however, was overruled by the case of State, ex rel. Crawford, Exr., v. Industrial Commission, 110 Ohio St., 271, 143 N. E., 574. In overruling the Munding case the Supreme Court held in the Crawford case that the “personal representative” of the dependent on the death of dependent was not “entitled to receive the unpaid installments.”

It is argued by counsel that in the Wagar case the decision was not limited to the determination that the award was a vested right and payable to the personal representative in case there were unpaid installments at the time of the death of the beneficiary, but that the case decided that there were two classes of dependents —those wholly dependent and those partly dependent — and if there were wholly dependents, and one award was made, it precluded the power of the commission to make any award to partly dependent persons. We are of opinion that counsel gives an unwarranted conclusion to the- decision in the Wagar case. While it is true the court in the Wagar case states in the syllabus that “There cannot be a joint award of compensation from the state insurance fund, under Section 1465-82, General Code, to a wholly dependent class and a partly dependent class,” however, in the opinion it is clear that the court based this proposition on the fact that the whole award must be paid to a class of wholly dependents, if such there be; and, since under the Munding case it was found that any unpaid balance in the award would go to the estate of the dependent there would be nothing to go to the partly dependent persons. There may have been justification in some of the observations in the Wagar case, due to the decision in the Munding case, but in the absence of a decision in the Munding case the court probably would not have arrived at the decision it did in the Wagar case.

We are of the opinion that under Section 1465-82, General Code, and the construction thereof given by the Supreme court in the case of State, ex. rel. Crawford, Exr., v. Industrial Commission, supra, the claimant is not barred from participating in the state insurance fund if she be a partly dependent person and there remains in the original award an unpaid balance.

In the opinion in the Crawford case, the court considers the several sections of the Code and the constitutional provisions pertinent to the question of the distribution of funds from the state insurance fund. Commenting on Section 1465-86 of the Code, which provides that the “powers and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion may be justified,” the court further states in the Crawford case, page 279:

“It will be seen that there are no limitations upon the continuing jurisdiction. Counsel for the relator, in this particular case, seek to avoid this sweeping provision giving the commission continuing jurisdiction solely on the ground of the alleged mandatory provisions contained in section 1465-82, General Code.

“If we were disposed to resort to a technical analysis of the language of that section we think it would be possible to show that the language is not mandatory, but it is not necessary to resort to technicalities. That section must be construed in pari materia * * * They are all parts of the same law. They are all enacted pursuant to the same constitutional authority and must be harmonized and so administered by the Commission as not to create inequalities; so as not to create rights in favor of one class of persons wholly inconsistent with rights granted to others. If the continuing jurisdiction of the Commission should not be applied to wholly dependent persons, then no reason can be found in justice or equity why they should be applied to partly dependent persons or to injured employes. To give to that section the construction claimed by counsel for relator would raise a serious doubt as to its constitutionality, as not having uniform operation.”

The court then proceeds to find and hold that there are no limitations upon the continuing jurisdiction of the commission, granted by Section 1465-86, General Code, and that this jurisdiction controls in the disbursement of the fund.

Section 1465-82, General Code, provides for relief to partly dependent persons.

Had the claimant filed her claim at the time of, or before, the award was made to the wholly dependent persons, the Industrial Commission would have had power to have made some part of the award to the partly dependent persons. The claimant in this case filed her claim within the time prescribed by law. If a partly dependent person, she could have been made some allowance. The award was made prior to the filing of her claim, and the whole award made to the wholly dependent persons. There remains in that award an unexpended balance, which may not go to the estates of the wholly dependent persons. The commission has already made several orders concerning the fund, to wit, ordering payments to the widow and infant child; transferring the same award to the infant son, on the death of the widow; and, again, the order discontinuing the payments by reason of the death of the infant son.

We are of opinion that under the power conferred by statute the commission may make an award to this claimant as a partly dependent person out of the unexpended balance of the award.

While we have discussed the law question, it may be that this is not in the case, and might more properly be raised later in another action. The only, judgment here for review is whether or not the finding of the jury that the mother was a partly dependent person was erroneous.

Finding no reversible error, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., and Cushing, J., concur.  