SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD Department.

STRADAR
V.

STERN BROS. ET AL.

IN RE EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW APPLICATION OF STATUTE "UPHOLSTERING”— CARPET LAYER.

Laying carpets is not "upholstering." within any of the definitions given the word by standard lexicographers, and especially not within Workmen's Compensation Law, § 2, group 16, declaring hazardous employments. "Manufacture of ; upholstering; manufacture of

* * *

a manufacturing group.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

Appeal from State Industrial Commission.

Proceeding by Charles F. Stradar under the Workmen's Compensation Law for compensation for injury to himself, opposed by Stern Bros., employers, and the Employers, Liability Assurance Corporation, Limited, insurance carrier. From an award of the State Industrial Commission in favor of claimant, the employers and insurance carrier appeal. Reversed and dismissed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

WOODWARD, J. The claimant, in presenting his claim for compensation, gave his occupation as that of a carpet layer. The employers' first report of the injury gave the same answer to the question as to the nature of claimant's work, and no one disputes these declarations. Indeed, the award is based upon the fact that, while the claimant was engaged in laying a carpet in the Democratic Club at 617 Fifth avenue, New York, he dropped his knee upon a tack, receiving an injury resulting in subsequent infection of his limb. The State Industrial Commission has made an award upon the strength of testimony by a member of a labor union that a carpet layer is an upholsterer, within some of the provisions of a labor organization, holding that the injury comes within the limits of group 16. This group of the Workmen's Compensation Law (Consol. Laws, c. 67), § 2, is:

"Manufacture of furniture, interior woodwork, organs, pianos, piano actions, canoes, small boats, coffins, wicker and rattan ware; upholstering; manufacture of mattresses or bed springs."

* Decicision rendered, November 13, 1918. 172 N. Y. Supp. 482.

[1-3] It is entirely obvious that "upholstering," as used here, is, in its manufacturing sense, a branch of lounge and parlor chair manufacturing, or a similar line of work in connection with the permanent decoration of houses, and no rule of construction can justify extending the word "upholstering to cover the mere laying of a carpet. "Upholsterer" is defined by Webster:

"To furnish [rooms, carriages, bedsteads, chairs, etc.] with hangings, coverings, cushions, etc.; to adorn with furnishings in cloth, velvet, silk, etc., as to upholster a couch; to upholster a room with curtains.”

The same authority defines "upholsterer" as:

"One who provides hangings, coverings, cushions, curtains and the like; one who upholsters."

We are required to give to words in a statute their ordinary and obvious meaning. The Workmen's Compensation Law is no exception to this rule, when cases reach this court. We may take judicial notice, in the absence of legislative enactment, that the mere laying of a carpet is not a hazardous occupation; it is not within the spirit of the law. The group in which we find upholstering is a manufacturing group, is a group in which machinery and tools and manufacturing conditions exist; and the word should be given the construction which its association in the statute suggests, even though it might have a broader meaning under exceptional circumstances. This is specially true when the word does not come within any of the definitions, fairly understood, given by the standard lexicographers. The Legislature has, with reasonable clearness, extended the original scope of the act; but it has not yet made the laying of carpets a so-called hazardous occupation.

The award should be reversed, and the claim dismissed. All concur, except John M. Kellogg, P. J., and Cochrane, J., who dissent.

SUPREME COURT OF OKLAHOMA.

LAHOMA OIL CO. ET AL.

ບ.

STATE INDUSTRIAL COMMISSION OF OKLAHOMA et al. (No. 9660.)*

'1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-AWARD-EFFECT OF DEATH.

Where one entitled to compensation under the Workmen's Compensation Act (chapter 246, Laws 1915) secured a determination and award for permanent disability, and died before the lapse of the maximum number of payments had been made according to the terms of the award, the right to compensation under the award ceased with his death.

(For other cases, see Master and Servant, Dec. Dig. § 393.)

Appeal from State Industrial Commission.

Proceeding by Timothy A. Downing for compensation under the Workmen's Compensation Act, opposed by the Lahoma Oil Company, the * Decision rendered, Sept. 3, 1918. Petition for rehearing withdrawn Nov. 14, 1918. 175 Pac. Rep. 836. Syllabus by the Court.

Maryland Casualty Company, and others. From an award made by the State Industrial Commission, the Lahoma Oil Company and the Maryland Casualty Company appeal. On the death of said Downing, the action was revived in the name of Malinda Downing, administratrix. On Motion to dismiss action. Motion sustained.

Ross & Thurman, of Oklahoma City, for appellants.

Burdette Blue and H. H. Montgomery, both of Bartlesville, and Fulton, Shirk & Danner, of Oklahoma City, for respondents.

OWEN, J. Petitioners appeal from an award made by the Industrial Commission on Novebmer 26, 1917, to Timothy A. Downing for $5,000, to be paid at the rate of $10 per week for a period of 500 weeks. After the appeal was perfected to this court, Downing died as the result of the injuries for which the award was made, and the action was revived in the name of Malinda Downing, administratrix of his estate. The case is before us on motion to dismiss the action on account of the death of Downing.

In support of the motion to dismiss it is contended, first, that an award made by the commission under the Workmen's Compensation Law (Laws 1915, c. 246) does not confer upon the injured workman a property right or an interest which upon his death becomes a part of his estate; and, second, that the Compensation Act does not apply to accidents resulting in death.

Two rights of action exist under the law of this state for wrongful injuries resulting in the death of a person. One is the right of action which survives to the estate, or the personal representatives, to recover damages sustained by the estate, and for pain and suffering, medical expenses, etc. The other is the right of action given for the benefit of the widow and children or next of kin for the pecuniary loss sustained by them on account of the death. It was held by this court in the case of St. L. & S. F. R. R. Co. v. Goode, Adm., 42 Okla. 784, 142 Pac. 1185, L. R. A. 1915E, 1141, that a recovery on one such cause of action does not bar recovery on the other.

[2] The language of section 1, art. 6, of the Compensation Act, is:

"It is not intended that any of the provisions of this act shall apply in cases of accidents resulting in death, and no right of action for recovery of damages for injuries resulting in death is intended to be denied or affected."

Counsel for respondents contend that this section applies only to the right of action accruing to the next of kin for pecuniary loss sustained on account of the wrongful death of the employee, arguing that the Compensation Act supplants the right of action for pain, suffering, medical expenses, etc., and that an award made to the employee vests at his death in his representatives. We do not agree with this contention.

The compensation to be paid to the employee does not depend upon whether the injury was, wrongfully caused by the negligence of the employer. It is paid when an accidental injury is sustained arising out of and in the course of the employment, without regard to the fault as a cause of such injury, except where the injury is sustained by the willful intention of the injured employee, or where the injury results directly from the willful failure of the injured employee to use a guard or protection furnished for his use, The act recognizes that a personal injury suffered by an employee arising out of and in the course of employment is an incident of the business in which he is employed. In consequence of that, the act provides that, as a matter of justice, the resulting burden should be borne by the business without regard to the question of fault on the part of the employer or employee.

[1] The act makes no reference to the payment of the unpaid install

ments of the award, in the event of death of the employee, to dependents or next of kin. It, in effect, provides that the employee, if accidentally injured, shall receive in lieu of his wages the amount fixed by the terms of the act. The average weekly wage of the employee is taken as a basis upon which to compute the compensation. Had there been no injury, the payment of wages would cease on the termination of the relation of master and servant. When the relation is terminated by death of the employee, the occasion for making compensation in lieu of wages comes to an end.

The act provides that the compensation shall be paid only to the employee, and that the claim for such compensation shall not be assigned and shall be exempt from claims of creditors. The cause of action for pain, suffering, medical expenses, etc., arising from a wrongful injury, survivies under the statute (section 5281, R. L. 1910) to the personal representatives when the injury results in the death of the employee, and becomes part of his estate and is subject to the claims of creditors. Section 7, art. 23, of the Constitution, provides:

"The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable' shall not be subject to any statutory limitation."

By the terms of the Compensation Act the amount of compensation for each injury is limited and based upon the amount of the weekly wage. The provision excepting injuries resulting in death was no doubt incorporated so as to make the act in harmony with this provision of the Constitution under which the amount recoverable cannot be limited if death results from the injury.

So long as the employee was alive, the Industrial Commission would have jurisdiction to hear and determine his claim for compensation, and this jurisdiction would be exclusive of the courts of the state under section 2, art. 6, of the act. When his injuries resulted in death, the Compensation Act. under the terms of section 1 of article 6, above quoted, would no longer apply, and the Industrial Commission would have no further jurisdiction. The cause of action, if any, arising from the death resulting from such injuries, would survive to such representatives, under section 5281 of the Statute, as though the Compensation Act had never become a law. That section of the statute provides for the survival of the action if the employee might have maintained an action had he lived. The effect of the Compensation Act was to afford to the employee a special procedure under which to maintain his action where the injuries do not result in death. After his death his representatives may maintain their action, but not under the Compensation Act.

[3] This construction avoids any conflict between the Compensation Act, section 5281 of the Statute, and section 7, art. 23, of the Constitution. The act must be construed to be in harmony with the provisions of the Constitution and the various sections of the statute law of the state, so as to give meaning and effect to all, if such construction is possible without doing violence to the spirit and language of the act. Roma Oil Co. v. Long, 173 Pac. 957 (not yet officially reported); Matthews v. Rucker, 170 Pac. 492.

Our attention has not been called to any decision exactly in point on the question involved here. The compensation acts of the various states, to which our attention has been called, differ materially from the provisions of our act. The acts of some of the other states include accidents resulting in death, and provide for payment of compensation to the dependent in the event of the death of the employee, in this respect differing from the act in this state. The courts of New Jersey, Massachusetts, and .New York held that payments cease at the death of the payee. The Supreme Court of Ohio, in the case of State ex rel. Mundling v. Industrial Commission, 92 Ohio St. 431, 111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162, held the award for a fixed sum payable weekly for six years to a dependent employee vested in the dependent when the award

was made, and at the death of such dependent her personal representative was entitled to the balance remaining unpaid. The award under that act has the essentials of a judgment, and appears to be made to the dependent in lieu of damages sustained by reason of the death of the employee. By virtue of our constitutional provisions the amount of recovery for a like cause of action in this state cannot be limited by statute, and the award made by the Industrial Commission under our act does not possess the essentials of a judgment. Under the continuing jurisdiction of the Commission to modify or change the award, it cannot be said to have a fixed determination or a definite amount to be paid for a fixed number of weeks. Our statute (section 5123, R. L. 1910) defines a judgment to be a final determination of the rights of the parties in an action. "An action" is defined in section 4644 of this statute to be an ordinary proceeding in a court of justice by which a party prosecutes another party for the en.. forcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Section 4645- of the statute provides that every other remedy is a special proceeding. Special proceedings are not within the scope of the usual statutory provisions providing for the survival of actions, and such proceedings, unless especially saved by a statute, abate on the death of the party. 1 C. J. p. 213.

Awards under our act lack another essential characteristic of a judgment. In event of refusal to make payment under the award, the Industrial Commission cannot enforce the payment by execution or order. Section 16 of article 2 of the act provides that the award shall constitute a liquidated claim for damages which may be recovered in an action instituted by the Commission.

The Supreme Court of New Jersey in Erie R. Co. v. Callaway, 102 Atl. 6, held that where one secured a determination and award for permanent disability, and died before the lapse of the maximum number of weeks for which the statute authorized compensation, the right to compensation ceased with his death. In that case it is pointed out that the act provides for compensation during the period of disability, not, however, beyond 400 weeks, and under this provision it was held the Legislature clearly contemplated that disability might not last 400 weeks. The employee there died from natural causes, and attention was called to the fact that the act contained no provision for a case where the employee died from a cause other than the accident during the period of payment for permanent injury. The conclusion was reached that the continuation of the payments after the death of the employee was not intended and was not within the purpose of the act.

Our statute provides that in case of total disability, adjudged to be permanent, 50 per centum of the average weekly wage shall be paid to the employee "during the continuance of such disability, not exceeding 500 weeks," and, like the New Jersey act, makes no provision for payment of the award in the event of the death of the employee.

The Massachusetts act provides for payment to the dependent of an employee killed in the service. In the case of In re Murphy, 224 Mass. 592, 113 N. E. 283, the Supreme Court of that state held these payments came to an end at the death of the dependent to whom the award was to be paid. The award was held not to be a vested right in the dependent passing to his personal representatives or next of kin. The act was held to apply only to the persons mentioned in the act.

In the case of Wozneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675, the New York court held that the award made to the employee did not give such employee a vested interest in the payments not due, and that the right to such payments did not survive the employee's death and become a part of his estate. The purpose of that act was held to be for the protection of the employee and the persons mentioned by the terms of the act.

By the plain and unequivocal language of section 1, art. 6, of our act,