Holder v. State Compensation Commissioner

166 S.E. 365, 112 W. Va. 637, 1932 W. Va. LEXIS 241

• Court: West Virginia Supreme Court
• Decided: October 25, 1932
• Docket: 7457
• Status: Published

Opinion

HATCHER, PRESIDENT:

Petitioner’s claim for death benefits of Clyde Holder, as a partial dependent of deceased, was denied by the commissioner on May 21, 1932, on the ground that petitioner was not a dependent within the meaning of the Act. Notice of this re- jeetion was received May 23rd, by the petitioner, and on May 26th, he employed a competent attorney “to protect his interests.” The attorney communicated with the commissioner, but did not file an objection to his rnling within ten days as required by statute. Petitioner learned of this failure for the first time on July 29th. Shortly afterwards he had other attorneys file an objection to the ruling with affidavits stating the circumstances attending the delay, and that petitioner had evidence which would prove his claim, and asking that the case be reopened and he be allowed to introduce this evidence. The commissioner refused to reopen the case, and petitioner seeks a writ of mandamus to compel him to do so.

It is a fair presumption that upon investigation the first attorney retained came to the conclusion that an objection to the commissioner’s ruling would be futile. Even negligence of counsel, however, is no legal excuse where timely action is mandatory under the statute as in this case. Post v. Carr, 42 W. Va. 72, 76, 24 S. E. 583.

The writ is denied.

Writ denied.