SUPREME COURT OF RHODE ISLAND.

DUFFNEY

ν.

A. F. MORSE LUMBER CO. (No. 450.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -AWARD AS VESTED RIGHT.

Under Workmen's Compensation Act, art 2, §§ 6, 7, 8, 9, 23, compensation awarded a partially dependent mother for her son's death in employment is not a right vested in her, and does not pass over to her husband, as her administrator, though he also was awarded compensation as a partial dependent, but ceased with her death.

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

Appeal from Superor Court, Providence and Bristol Counties; John Doran, Judge.

Petition by George Duffney, as administrator of Emma Duffney his wife, to compel the A. F. Morse Lumber Company, the employer, to pay to him weekly compensation awarded the wife under the Workmen's Compensation Act for the death of their son, on whom they were partially dependent. From decree ordering such payments, the employer claims appeal. Appeal allowed, decree reversed, and cause remanded, with direction to dismiss the petition.

Gardner, Pirce & Thornley, of Providence, (Charles R. Haslam, of Providence, of counsel), for appellant.

James F. Murphy, of Pawtucket, and James M. Gillrain, of Providence, for appellee.

PARKHURST, C. J. This case comes before this court upon the respondent's appeal from a decree of the superior court. By this decree the respondent was ordered to pay the petitioner, as administrator of the estate of Emma Duffney, his wife, weekly compensation at the rate of $2 a week, beginning January 16, 1918, until the expiration of the period of 300 weeks from December 11, 1916, the date of the injury of the deceased employee, Dave Duffney, which payment would have been payable to Emma Duffney, if she had lived, under the Workmen's Compensation Agreement No. 6510, filed in superior court February 1, 1917, and approved by the superior court on February 8, 1917.

By the terms of this agreement, it appears that George Duffney and Emma Duffney, his wife were the parents of Dave Duffney, the deceased employee, were partially dependent upon his earnings for support at the time of his death, and payment of $2 a week were agreed to be paid by the said respondent as employer to each of the said partial dependents, "to begin as of December 11, 1916, and to continue for a period not to exceed 300 weeks from December 11, 1916." Under this agreement, payments of $2 a week were made to each of these partial dependents from December 11, 1916, to January 9, 1918, on which date Emma Duffney died. During that period of time the respondent took from each of the said dependents separate receipts for the weekly payments of compensation of $2.

*Decision rendered, July 1, 1919. On Petition for Reargument, July 10, 1919. 107 Atl. Rep. 225.

Since January 9, 1918, the employer has paid to the said petitioner under this agreement the sum of $2 weekly, but has refused to pay to him the weekly payments of $2 formerly made to Emma Duffney. In June, 1918, the petitioner as "a dependent" brought a petition against the respondent, claiming that he was entitled to the compensation formerly paid to his wife under the agreement on the ground that he was the sole surviving dependent of his son, Dave Duffney, and also on the ground that the right of Emma Duffney to compensation under the agreement was a vested one and passed to him as her "surviving husband"; and accordingly, he prayed for the enforcement of the agreement so that this weekly sum of $2 formerly paid to Emma Duffney should be paid to him for the balance of the compensation period. This petition was heard before Mr. Presiding Justice Tanner, who filed a rescript denying the petition on the ground: First, that even if the right of Emma Duffney to compensation under the agreement was a vested one, yet it did not pass to the petitioner because he had not been appointed administrator; and, secondly, because the mere survivorship of the petitioner did not entitle him to all the compensation payable under the agreement to himself and wife.

Later, on January 4, 1919, the petitioner filed an amended petition subtantially to the same effect as the former one, except that it was alleged that George Duffney had been appointed administrator of the personal estate of Emma Duffney, his wife and had given bond to pay the debts of his wife, and was therefore "entitled to demand and recover as his own property, the remaining weekly sums of $2 each accruing after the death of said Emma Duffney under said memorandum of agreement." This amended petition was heard before Mr. Justice Doran, who rendered a decision in which he held that the right of Emma Duffney as partial dependent under the compensation agreement was a vested one and upon her death passed to the petitioner as administrator of her estate. Thereafter a decree was entered by Mr. Justice Doran in which it was decreed as follows:

"(1) That the said petitioner is not entitled to said compensation formerly paid to his wife, Emma Duffney, under said agreement as surviving dependent.

(2) That the right of the said Emma Duffney to compensation under said agreement was a vested right which survived her death and passed to the said petitioner as administrator of her estate.

"(3) That, as administrator of the estate of Emma Duffney, the said petitioner is entitled to receive compensation at the rate of $2 per week beginning January 16, 1918, until the expiration of the period of 300 weeks, beginning December 11, 1916, the date of the injury to the said Dave Duffney, deceased, which said payments would have been payable under said agreement to the said Emma Duffney if she had lived." To this decree the respondent duly filed its claim of appeal and reasons therefor and has duly prosecuted its appeal to this court, and this appeal is now before us.

The principal question, decisive of this case, is whether or not the right of Emma Duffney (mother of the deceased employee, and a partial dependent upon him at the time of his death) to receive $2 per week as compensation under the agreement was vested in her and passed to her administrator upon her death.

The provisions of the "Workmen's Compensation Act" of Rhode Island, being chapter 831, Pub. Laws, January, 1912, p. 424 et seq., which are important in this case, may be briefly stated as follows: By the terms of section 6 of article 2 of our Workmen's Compensation Act, it is provided that, in case the employee dies as a result of the injury, the employer shall make certain payments to his dependents. If the dependent to whom the compensation shall be payable is the widow of the employee, then it is provided that

"Upon her death the compensation thereafter payable under this act shall be paid to the child or children of the deceased employee, including adopted and stepchildren, under the age of eighteen years, or over said age, but physically or mentally incapacitated from earning, dependent upon the widow at the time of her death."

It is also provided that

Where weekly payments have been made to the injured employee before his death, then "the compensation to dependents shall begin from the date of the last of such payments, but shall not continue more than 300 weeks from the date of the injury: Provided, however, that if the deceased leaves no dependents at the time of the injury, the employer shall not be liable to pay compensation under this act except as specifically provided in section 9 of this article."

Section 9 provides that, where an employee dies leaving no dependents at the time of his injury, then the employer shall pay the reasonable expense of his last sickness and burial, which shall not exceed $200.

It is also provided in section 7 of article 2 that in all cases except those of a dependent wife, husband or children, "questions of entire or partial dependency shall be determined in accordance with the fact as the fact may have been at the time of the injury"; that, "if there is more than one person wholly dependent, the compensation shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof during the period in which compensation is paid to persons wholly dependent"; and that, "if there is no one wholly dependent and more than one person partly dependent, the compensation shall be divided among them according to the relative extent of their dependency." Another section of the act relative to the question at issue is section 8, art, 2, which provides that

"No person shall be considered a dependent unless he is a member of the employee's family or next of kin, wholly or partly dependent upon the wages, earnings or salary of the employee for support at the time of the injury.".

Section 23 provides that

"No claims for compensation under this act, or under any alternative scheme permitted by article 4 of this act, shall be assignable, or subject to attachment, or liable in any way for any debts."

There is no express provision of the act for the further or future payment of any sum of money awarded to a partial dependent, such as was the mother of the deceased employee in the case at bar, after her death, to any other person (such as exists in case of the dependent widow leaving children within certain ages and conditions).

No case in this state has dealt with this question, but it has been passed upon in other jurisdictions. In Murphy's Case, 224 Mass. 592, 113 N.-E. 283, under the Massachusetts act (St. 1911, c. 751, as amended), which in essential respects is similar to ours, the sole dependent of the deceased employee was his mother, and she died while her claim for compensation was pending. After her death, her administrator intervened, and the industrial accident board made an award of compensation based on total dependency, and the superior court confirmed this award and ordered that compensation should be paid to the administrator for the period of 300 weeks under the Massachusetts Compensation Act. The Supreme Judicial Court, in reversing this decision, held that the estate of the dependent mother was entitled to compensation from the date of the injury to the date of her death, but that her administrator had no right to further compensation, since the right of the dependent mother to compensation was not a vested right which passed to her legal representatives. The court said, at page 594 of 224 Mass., at page 284 of 113 N. E.:

"To hold that the dependent's right to compensation is a vested right,

which passes to a legatee by will, and in case of intestacy goes to the dependent's next of kin, would be to put upon the insurer a burden not called for by the object which the act was passed to attain. In addition, the compensation awarded the dependent would go in that case to persons altogether outside the class contemplated by the act. So construed, the act would or might enrich strangers in place of doing justice to the family and next of kin of an employee killed in the course of, and so as an incident to, the business in which he was employed.

* * *

"The opposite result has been reached in England and in Ohio. But both those decisions were founded on provisions of the acts there in question which were not like the provisions of our Workmen's Compensation Act. The decision in United Collieries, Ltd., v. Simpson (1909) A. C. 383, was based upon the provision of the English act that in case the employee was killed a lump sum should be paid to those dependent upon him The decision in Ohio (State v. Industrial Commission of Ohio, 92 Ohio St. 434, 436, 437 [111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162]) was founded on a provision of the act that in the case of persons wholly dependent 'the payment shall be sixty-six and two-thirds per cent. of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of injury.' This provision, construed in the light of the report of the commissioners, was held by the court to mean what by a literal interpretation of its words it provided.

"For these reasons, we are of opinion that, although there is no express provision to that effect in the act, the weekly payment to be made to the dependent comes to an end when the dependent dies."

In Bartoni's Case, 225 Mass. 349, 353, 114 N. E. 663, L. R. A. 1917E, 765, the Massachusetts court, following Murphy's Case, supra, held that under the Workmen's Compensation Act the right to a weekly award for the death of a deceased employee is not vested absolutely in his widow, but continues only during her life and ceases with her death. In the Massachusetts act there is no provision, as in ours, that, in the case of the death of a dependent widow, the compensation shall thereafter be paid to the children of the deceased employee, dependent upon her for support at the time of her death.

The two cases above cited were referred to and approved by the Massachusetts court in Bott's Case, 230 Mass. 152, 119 N. E. 755, where it was held that a widow awarded compensation for the death of her husband is not barred from receiving further payments as a dependent upon .her remarriage, although the remarriage renders her no longer dependent for her support upon the payments received under the act. On page 154 of 230 Mass., on page 755 of 119 N. E., the cout said:

"It was held in Murphy's Case, 224 Mass. 592 [113 N. E. 283], that the right to payments under the act was not vested, and ceased upon the death of the dependent. But that decision does not reach to the point here raised. Its reasoning, in brief, was that there was no provision in the act for payment to be made to anybody save to the dependents therein named, and nothing to indicate a purpose that the payments be made to the personal representative of dependents in case of their death, and that to treat the right to such payments as passing to their executors or administrators often would or might result in payments to persons in no way connected with the deceased employee, or his family or kindred, and this might deprive some of his kindred in truth dependent upon his wages for support of any payment under the act. The practical justice of that decision is illustrated by Bartoni's Case, 225 Mass. 349, 354 [114 N. E. 663, L. R. A. 1917E, 765]. The word 'dependents' as matter of construction did not seem rationally susceptible of including their personal representatives in case of their death, in view of the context of the act and its general purpose. That reasoning does not apply to the case at

bar"

Bott's Case, supra, was cited with approval by this court in Newton v. Rhode Island Co., 42 R. I. 58, 63, 105 Atl. 363, 365. This Massachusetts case clearly shows that the question decided by this court in Newton v. Rhode Island Company, supra, is quite different from the one involved here, and consequently that case is not an authority in point here, as contended by the petitioner.

To the same effect, that the right to compensation awarded to an injured employee or to dependents is not a vested right and does not pass to a personal representative under Workmen's Compensation Acts of a nature substantially similar to our own, see, also, Erie Railroad Co. v. Callaway, 102 Atl. 6 (right of employee himself); Ray Adm'r v. Ind. Ins. Com., 99 Wash. 176, 178, 168 Pac. 1121, L. R. A. 1918F, 561 (right of employee himself); Lahoma Oil Co. v. State Ind. Com. of Okl., 175 Pac. 836, 837 (right of employee himself); Wozneak v. Buffalo Gas Co, 175 App. Div. 268, 161 N. Y. Supp. 675, 679 (right of employee himself); Matecny v. Vierling Steel Works, 187 Ill. App. 448, 458 (dependent mother); Corcoran v. Farrel Foundry & Machine Co., 1 Conn. Comp. Dec. 42, 44, pars. 24, 25 (dependent mother); Ledford v. Casper Lumber Co., 2 Cal. Ind. Acc. Com. 679 (dependent mother)..

Counsel for petitioner in their brief cite only a few cases under compensation acts in support of their position that the award of compensation to the dependent mother in this case was vested in her and at her death passed to her administrator. Most of them are not in point. Thus, Wangler, etc., Co. v. Ind. Com., 287 Ill. 118, 122 N. E. 366, and Hansen v. Brann & Stewart Co., 90 N. J. Law, 444, 103 Atl. 696, support the doctrine laid down by this court in Newton v. Rhode Island Co., 42 R. I. 58, 105 Atl. 363 (supra), that a widow receiving compensation as a dependent does not forfeit the same by remarriage. Roma v. Ind. Com., 97 Ohio St. 247, 119 N. E. 461, has no bearing on this case. Smith v. Southern Surety Co. (Tex. Civ. App.) 193 S. W. 204, has no application; the provisions of the Texas act are radically different, the scheme and method of payment are entirely different; it is held that a temporary administrator of a deceased employee cannot recover because the plain terms of the act point out the destination of the compensation in case of the death of the injured employee. Re Constantine Towle, Op. Sol. Dept. of Labor, p. 565, is under the federal Compensation Act, and, so far as it goes, is against the petitioner, in that it finds that when the dependent widow of a deceased employee, having received an award, died one week thereafter, the amount accrued between the death of the employee and her death became a part of her estate. This Towle Case is incorrectly stated in Bradbury's W. C. L. (3d Ed.) 803, 804, also cited by petitioner, which probably accounts for the citation of this case by the petitioner. Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, simply holds that a lump sum judgment in favor of an injured workman under the Workmen's Compensation Act does not abate by his death, but may be revived in the name of an administrator. It appeared in that case that before the death of the injured workman there had been a judgment entered in his favor, commuting all future payments of compensation to a lump sum and pending the appeal by the employer, which was later denied, the employee died. The court said, at page 210 of 102 Kan., at page 802 of 170 Pac.:

"In the present case, the plaintiff had obtained an absolute personal judgment requiring the immmediate payment of a fixed amount. It was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made, the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance, it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having