McKay v. Department of Labor & Industries

39 P.2d 997, 180 Wash. 191, 98 A.L.R. 990, 1934 Wash. LEXIS 841

• Court: Washington Supreme Court
• Decided: December 21, 1934
• Docket: No. 25316. Department Two.
• Status: Published

Opinions

Holcomb, J.

The facts are undisputed in this case that the workman was single at the time of his injury; that he was not married to respondent until some three years after the accident, and one child was born of the union; that he died on July 4,1932. Bespondent filed a timely claim for pension on account of his death, as a widow, which was rejected by appellant. There after, a hearing was had before the joint board, at which hearing appellant did not controvert the evidence on her behalf that the deceased died as a result of the accident. The claim was rejected solely on the ground that respondent was not the widow of the deceased workman within the meaning of the compensation act.

On respondent’s appeal to the superior court, it reversed the order of the department, and found as a fact and concluded and adjudged that respondent is the widow of the deceased workman as defined in the workmen’s compensation act. The trial court thereupon remanded the matter to the department to award compensation as provided by law to respondent as the widow of the deceased workman, and for such compensation as is provided for her child.

On appeal, the sole question to determine is whether a woman who marries the injured workman subsequent to his injury is entitled to compensation as his widow under the act where the injury causes the death of the workman.

Counsel agree that it is well settled in this state that the law in effect at the time of the injury governs the rights of the parties, as decided in Thorpe v. Department of Labor and Industries, 145 Wash. 498, 261 Pac. 85; Foster v. Department of Labor and Industries, 161 Wash. 54, 296 Pac. 148, 73 A. L. R. 1012; Sandahl v. Department of Labor and Industries, 170 Wash. 380, 16 P. (2d) 623.

Appellant deduces one conclusion from that state of the law and respondent another. Respondent asserts that she is not seeking any benefits from any change in the law.

The statutory provisions in force at the time of the accident, so far as pertinent here, were and now are: Rem. Rev. Stat., §7675 [P. C. §3470], defining de pendents of an injured workman as certain specified relatives and the beneficiary as meaning the husband, wife, child, or dependent of a workman in whom shall vest a right to receive payment under the act.

Section 7679, Eem. Eev. Stat. [P. C. § 3472], provides :

“Each workman who shall be injured in the course of his employment, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever. . . .

“(1) If the workman leaves a widow or invalid widower, a monthly payment of thirty-five dollars ($35.00) shall be made throughout the life of the surviving spouse, . . .”

Another provision provides:

“(4) In the event a surviving spouse receiving monthly payments shall die, leaving a child or children under the age of sixteen years, such child or children shall receive each the sum of twenty-five dollars ($25.00) per month until arriving at the age of sixteen years, . . .”

There is no definition of the word “widow” to be found in the act, but we have defined “widow” as “a married Woman whose husband is dead.” Meton v. Industrial Insurance Department, 104 Wash. 652, 177 Pac. 696.

Our statute contains no provision to the effect that the status of the party is determined at the date of the accident, which might have been included. The statutes of some of the states do, but it would be useless to review such statutes and the decisions of the courts under them.

Appellant urges that the case of Foster v. Depart ment of Labor and Industries, supra, is controlling. In that case, there was no widow involved. The injured workman, who was single when injured, himself attempted to increase his compensation because of a subsequent marriage, the birth of a child, and the existence of a step-child. We held that this could not be done because his compensation was expressly fixed by the statute which provided that the workman shall receive monthly “if unmarried at the time of injury, the sum of thirty-five dollars ($35).”

In an earlier case, Zahler v. Department of Labor and Industries, 125 Wash. 410, 217 Pac. 55, we decided that:

“While the workman lives, he is entitled to the award payable on account of his injury, and upon his death, under the conditions specified in the law, his family or dependents are allowed compensation, not for his injury for which he himself is entitled to an award, but for his death. ’ ’

In the Thorpe case, supra, we held that the right of compensation to the widow arose at his death, and certainly arose from his injury.

The plain and unambiguous language of the statute provides the compensation to respondent. In construing a statute, it is safer always not to add to, or subtract from, the language of the statute unless imperatively required to make it a rational statute. This is not the case here.

The judgment is right, and is affirmed.

Mitchell, Steinert, and Bláke, JJ., concur.