
    The State, ex rel. Spiker, Admx., v. Industrial Commission of Ohio.
    
      (No. 29318
    Decided February 24, 1943.)
    
      Mr. John F. Loche, for relatrix.
    
      Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for respondent.
   Turner, J.

The petition seeks a peremptory writ of mandamus to compel the Industrial Commission .to ascertaiu the disability and to compute the amount of compensation due the deceased injured workman at the time of his death and to pay from the state insurance fund such accrued compensation to the relatrix.

To the petition respondent has filed a general demurrer on the ground “that said petition does not state facts sufficient to show a cause of action in manadmus.” Respondent argues that the relatrix has no legal capacity to bring this action while relatrix argues contra. However, to reach this question at this time it would have been necessary for respondent to have filed a spe•cial demurrer under Section 11309 (3), General Code, specifying such ground. Section 11310, General Code, provides:

“The demurrer shall specify the grounds of objection to the petition. Unless it does so, it shall be regarded as objecting only that the court has no jurisdiction of the subject of the action, or that the petition •does not state facts which show a cause of action.”

As the capacity of relatrix to bring the action is not properly raised it will not be passed upon. In disposing of this case it will be necessary to pass only upon the sufficiency of the petition irrespective of the fact that it is brought upon the relation of an administratrix and seeks to have payment made to her. While the administratrix’ right to receive any payment might be considered on demurrer such consideration will be unnecessary under our finding.

We are here dealing with statutory rights wholly independent of common law or equitable considerations. The right, if any, to the writ arises under the provision of Section 1465-83, General Code. As benefits in case of death resulting from a compensable injury are not involved in this case, the only part of Section 1465-83, General Code, material here is that which applies to the awarding and paying of an unpaid balance of an award accruing or which might have accrued to an injured workman during his lifetime and reads as follows:

“* * * In all cases of death from causes other than the injury for which award had theretofore been made * * * in which there remains an unpaid balance, representing payments accrued and due decedent at the time of his death, the commission may at its discretion, after satisfactory proof has been made warranting such action, award or pay any unpaid balance of such award to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission shall determine in accordance with the circumstances in each such case. And if the decedent would have been lawfully entitled to have made application for an award at the time of his death the commission may, at its discretion, after satisfactory proof to warrant an atvard and the payments hereinafter mentioned, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission shall determine in accordance with the circumstances in each such case * * (Italics ours.)

The foregoing section provides that where the death of the workman has resulted from a cause other than the injury for which an award was or might have been made to the workman during his lifetime the commission may at its discretion pay an unpaid balance of the award made to the workman during his lifetime or may make an award after the death of the workman and pay same to the dependents, but in either event the amount to be paid is limited to what the workman might have received during his lifetime.

To restate for clarity and emphasis, the commission may at its discretion pay the dependents the unpaid balance of an award previously made to the workman in his lifetime or it may award and pay to the dependents what the injured workman would have been entitled to receive during his lifetime.

However, nothing may be paid under the quoted part of this section unless the workman died from a cause other than the compensable injury. It is at this point that relatrix’s case fails.

Relatrix ’ petition contains the following averments:

“10. Your relator says, further, that before the respondent ascertained the extent of the disability and the computation of the amount of compensation due the said John Pearch, namely, on the 21st day of February, 1942, he (J ohn Pearch) became deceased. Thereafter, the said Margaret Pearch, now deceased, but then living, filed with the respondent [The Industrial Commission of Ohio] a first notice of death and preliminary application wherein she asked for the payment of money out of the state insurance fund on account of the death of said John Pearch. In said claim .she alleged that the death of her decedent was the result of the accidental injury set forth in said claim No. 123182 P. E. [The claim in which an award for compensation had been made to John Pearch.] In said .application she claimed to be wholly and solely dependent upon the said John Pearch at the time of the injury received, namely, on June 14, 1940, thereafter, and at the time of his decease on the 21st day of .February, 1942.”
“13. Your relator says, further, that before the respondent could investigate or make any finding upon the application of the said Margaret Pearch to parti•cipate as the sole dependent in the.claim as filed, and .as more fully set forth in paragraph 10 of this petition,' the said Margaret Pearch died intestate on the 10th day of May, 1942, and thereafter she became the ■duly appointed, acting and qualified administratrix of her estate, as set forth in paragraph 1 of this petition.
“14. Your relator says, further, that on July 3, 1942, she filed with the respondent a dismissal, without prejudice, • of the application filed by the said Margaret Pearch to/participate in the state insurance fund on account of the death of the said John Pearch, ■as more fully described in paragraph 10 of this petition ; and at the same time, she filed a motion with the respondent that the accrued compensation due the said .John Pearch that had accrued to him during his life■time be paid to her as administratrix of the estate of Margaret Pearch, his widow and sole dependent.
“15. Your relator says, further, that the respondent, on July 22,1942, and again on August 21,1942, arbitrarily and unlawfully refused to permit your relator, acting as administratrix of the estate of Margaret Pearch, deceased, to dismiss without prejudice said .application filed by the said Margaret Pearch for a •death award.
“16. Your relator says, further, that on August 21, .1942, the respondent passed on the motions set forth in paragraphs 12 and 14 of this petition and issued the -order following:
“ ‘By virtue of the judgment obtained by the decedent in the Common Pleas Court of Tuscarawas •county, it is ordered that the fee bill .of Dr. C. J. Miller, .in the amount of $129.50, be paid as approved, and that statutory attorney fees on the basis of this award he paid to John F. Locke as per the journal entry on ■file; that the court cost bill in the amount of $4.20 be paid to the Clerk of Courts of Tuscarawas county, and that warrants for attorney fees and court costs be issued forthwith and sent to R. E. Schumaker for delivery.
“ ‘The commission, after fully considering all the facts and circumstances and also the briefs filed by •counsel for the claimant with reference to the request for payment of the compensation, which the decedent would have received but for his death, to the administratrix of the estate of John Pearch, dec’d., and also ■of the estate of Margaret Pearch, dee’d., and attorney fees to John F. Locke, under provisions of 1465-83 and 1465-90, G-. C., finds that the motions filed on April 2nd .and June 27th, 1942, are not'well taken and, therefore, •orders that said motions be denied.
“ ‘It is further ordered that a field investigation be made in connection with the application for a death .award filed herein on Feb. 26, 1942.’ ”

Not only does relatrix’ petition fail to show that the workman died from a cause other than the injury for which the award was or might have been made to the workman during his lifetime but it does show that: (a) A claim was made for death benefits on account of death resulting from the compensable injury; (b) the commission did act under Section 1465-83, General Code, upon relator’s claim; and, (e) the commission ordered a field investigation made in connection with the application for a death award. Other questions need not'be noted.

The fact that the widow’s administratrix attempted to dismiss the death claim without prejudice is beside the point. No authority for such attempted action was alleged.

The demurrer will therefore be sustained and relator’s petition dismissed.

Demurrer sustained and petition dismissed.

Weygandt, C. J., Matthias, Hart, Zimmer:,ian and Bell, JJ., concur.

Williams, J.,

dissenting. The question of the right of the administratrix of a deceased claimant’s dependent to receive the compensation awarded to the claimant in his lifetime has not been previously passed upon by this court but is squarely presented by the demurrer to the petition. ■

There have been several decisions, however, which are more or less helpful in reaching a conclusion herein. It is now well settled in this jurisdiction that a personal representative of an. estate of a deceased workman is not entitled to the compensation to which the decedent would have been entitled had he lived, whether an award was made previous to decedent’s ■death or not. Bozzelli v. Industrial Commission, 122 Ohio St., 201, 171 N. E., 108; State, ex rel. Rowland, Admr., v. Industrial Commission, 126 Ohio St., 23, 183 N. E., 787, 87 A. L. R., 862; State, ex rel. Petroff, v. Industrial Commission, 127 Ohio St., 65, 186 N. E., 721. The rationale of those decisions is that the state insurance fund is administered for the benefit of the injured workman during life and his dependents after his death. Disbursing to the workman’s administrator or executor the amount payable to the decedent in his lifetime would deprive dependents of their rights in and to such compensation under and by virtue of Section 1465-83, General Code.

Such decisions, then, are to be distinguished from those in which an administrator or executor of a deceased dependent seeks compensation payable to such dependent at the time of death. With respect to instances of that character it has been held that the personal representative of a deceased dependent is entitled to receive from the state insurance fund compensation (referred to as “benefits in case of death” in Section 1465-83, General Code) accruing to such dependent for any part of the period between the workman ’s death and the dependent’s death. State, ex rel. Hoper, Admr., v. Industrial Commission, 128 Ohio St., 105, 190 N. E., 222; Industrial Commission v. Dell, Exr., 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R. 422; Whitmore v. Industrial Commission, 105 Ohio St., 295, 136 N. E., 910.

Later, in the case of State, ex rel. Gaddis, v. Industrial Commission, 133 Ohio St., 553, 15 N. E. (2d), 146, this court held that a dependent widow was entitled to a writ of mandamus to compel an allowance of compensation to her for a period between the injury and death of the workman, where he had been awarded compensation during his lifetime but had not received, payment thereof. The decision was grounded upon that part of Section 1465-83, General Code, which reads as follows:

“In all cases of death from causes other than the injury for which award had theretofore been made on account of temporary, or permanent partial or total disability, in which there remains an unpaid balance, representing payments accrued and due decedent at the time of his death, the commission may at its discretion, after satisfactory proof has been made warranting such action, award or pay any unpaid balance of such award to such of the dependents of the decedent * * * as the commission shall determine in accordance with the circumstances in each such case.”

This court in that case deemed the finding of the Court of Common Pleas, that the claimant was entitled to participate in the state insurance fund, to be an award within the meaning of the statute, and that Gaddis, having died from a cause other than the injury for which the award was made, namely, suicide, the statute was applicable and when such finding was certified to the Industrial Commission it was the duty of the commission to recognize the finding as an award of some disability compensation.

In .the instant case, the above quoted portion of Section 1465-83, General Code, as well as an additional part, must be considered. The additional part which was added to the statute by amendment effective July 9, 1931 (114 Ohio Laws, 26, 37) is as follows:

“And if the decedent would have been lawfully entitled to have made application for an award at the time of his death the commission may, at its discretion, after satisfactory proof to warrant an award and the payments hereinafter mentioned, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission shall determine in accordanee with the circumstances in each such case, provided, however, that such payments may be made only in cases in which application for compensation was made in the manner required by this act during the lifetime, or within six months after the death, of such injured person, and provided, further, that such payments may be made only in the event that the injured person dies within two years of the date of the last award preceding his death, if any award had been made in the decedent’s lifetime, or within two years of the date of his injury, if no such award had been made.”

This part of the statute, which makes no reference to the cause of death, authorizes the commission to pay compensation to the dependent of the deceased injured workman to the extent that he might have received compensation for the period prior to his death. This authority is not limited to instances in which no award was made to the injured workman during his lifetime, for in regard to disbursements to the dependent it is recited “that such payments may be made only in the event that the injured person dies within two years of the date of the last award preceding his death, if any award had been made during the decedent’s lifetime.” It could hardly have been the legislative intent that a dependent could receive such compensation if the deceased workman “would have been lawfully entitled to have made application for an award,” but would not be entitled thereto if an award had actually been made to him. The making of an award ipso facto establishes the lawful right to apply therefor. Nor is the right of a dependent to the compensation, which the deceased workman could have drawn had he lived, affected because such dependent is entitled to receive death benefits. In a proper case the dependent is entitled to both.

Yet in the final analysis the meaning of the statute is to be derived from its four corners when read as a whole in keeping with the well-known canon of construction that the intendment of the enactment is the-polestar of its interpretation. Reading the statute as-a whole (the part quoted in the Gacldis case and the-“additional part”), we can conclude only that it was the intent of the legislative body to authorize the commission inter alia to carry out the award of compensation to the workman by paying to his dependents not exceeding the amount he might have received during his'lifetime regardless of the cause of the workman’s-death; but in case no award had been made to the workman during his lifetime, the dependent is -not entitled to any part of the compensation awardable to-the workman for his injury unless his death was the-direct result of the injury. Dependent’s rights, however, are subject to limitations contained in the provisos.

When there is an award of compensation to the workman on appeal to the Court of Common Pleas, as there was in the instant case, the commission cannot go-beyond the award and re-determine the right of the-deceased workman thereto, since the adjudication in that court that the workman is entitled to participate in the state insurance fund is, as was said in the Gaddis case, “an award of some disability compensation.” The commission was foreclosed thereby as to-the right of the workman to compensation during his lifetime for the period prior to his.death but not as to-the extent of the disability or the amount to be paid. These matters remain entirely in the discretion of the-commission.

-The language' of the section quoted in the Gaddis case relating to the discretion of the commission is-“the commission may at its discretion, after satisfactory proof has been made warranting such action,, award or pay any unpaid balance of such award to such of the dependents of the decedent, * * * as-the commission shall determine in accordance with the circumstances in each case;” The above quoted “additional part” was added to Section 1465-83, General Code, by way of amendment prior to the decision in the Gaddis case but after the date of Gaddis’ injury. The language therein relating to discretion is “the commission may, at its discretion, after satisfactory proof to warrant an award and the payments hereinafter mentioned, award and pay an amount, not exceeding the compensation which decedent might have received * * * to such of the dependents * * * as the commission shall determine in accordance with the circumstances in each such case * *

These provisions grant discretion to . the commission but not authority to act capriciously. The power to pay less than the decedent might have received exists if there is a legal reason to do so. In other words, the discretion vested in the commission is a sound discretion to be exercised according to law. Therefore, the widow of John Pearch as his sole dependent would, if living, be entitled to a writ of mandamus to compel the commission to treat the adjudication made in- the -Court of Common Pleas as “an award of some disability compensation.” Although the court in the Gacldis case was construing on-ly the part of Section 1465-83, General Code, quoted therein, we think the principle pronounced is applicable in the- instant case.

It follows that where there is an award to the deceased workman, as here, it is immaterial whether his death was caused by the injury or not, for in either event his dependents would be entitled to receive the unpaid compensation, subject to the provisos in the statute, which have no bearing, however, in the instant case. So an allegation as to cause of death, being immaterial in view of other facts pleaded, need not be incorporated in the petition.

It remains to consider whether the right to compensation. to which the widow of the deceased workman,, as his sole dependent, was so entitled, passed to her administratrix. No compensation was paid to the dependent widow during her lifetime and after her death, the commission refused to allow any disbursements, whatever from the state insurance fund to her administratrix in compensation of her husband’s injury for a period prior to his death.

We are of the opinion that the principle stated in the fourth paragraph of the syllabus in Industrial Commission v. Dell, Exrx., supra, applies here. We quote the language thereof:

‘ ‘ 4. The right of a widow to participate in the state-insurance fund is not lost by the death of such widow before an award has been rendered thereon,, but the legal representative of such widow, in the absence of other dependents, is entitled to an award covering the-period from the time of the death of the employee-until the death of such widow.”

In that case the court was concerned with compensation for a workman’s death directly resulting from-his injury; but in our judgment there is no good reason-why a distinction should be made between compensation arising from a workman’s death and that arising-from his injury. If the administrator or executor of the deceased dependent is entitled to compensation accruing to dependent from the death of the workman, by parity of reasoning such personal representative would be entitled to compensation accruing to dependent by virtue of the parts of Section 1465-83, General Code, under scrutiny.

For the reasons given the relatrix as administratrix of the estate of Margaret Pearch, deceased, is entitled to a writ of mandamus to compel the respondent to pay to relatrix, out of compensation awarded to the deceased workman in cause No. 25779 but remaining unpaid, such an amount as the commission may in the-exercise of its discretion ascertain and determine under the circumstances of this case.

In that cause, the Common Pleas Court also fixed the percentage of fees to be paid to the attorney for the relator, the injured workman, then living. The fees are properly taxable as part of the costs and are payable by the commission upon the disbursement of compensation as awarded. Fisher Body Co. v. Cheflo, 122 Ohio St., 142, 171 N. E., 31. As that compensation, subject to the action of the commission, is now payable to the administratrix of the estate of Margaret Pearch, deceased, the percentage of the attorney fees should be paid to the attorney, John F. Locke, as disbursement of compensation is made to such administratrix.

A writ of mandamus should be allowed as herein indicated.  