Georgia Casualty Co. v. Ward

WILLSON, C. J. (after stating the facts as above).. Part of section 4a, pt. 2, of the Employers’ Liability Act approved April 16, 1913 (General Laws, pp. 429 to 438 [Vernon’s Sayles’ Ann. Giv. St. 1914, art. 5246ppp]), was as follows: “No proceedings for compensation for injury under this act, shall be maintained * * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in ease of the death of the employs, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.” It is insisted that making claim for compensation for an injury within the time specified in the part of the act just set out was a prerequisite to the existence in an employs of a right to. an award thereunder; and that, because appellees did not specifically allege in their petition that claim for compensation for the injury to Ward was so made, the trial court erred when hp overruled the demurrer to said petition on the [381] ground that it did not appear from the allegations therein that appellees had a cause of action against appellant. It will be noted that by the terms of the act, “in case of the death, of the employé” it was sufficient if the claim for compensation was made within six months thereafter. It was alleged in the amended petition filed by appellees April 17, 1918, that Ward died April 15, 1918. The filing of that petition was a claim by ap-pellees for compensation provided for in the act, and, as it was filed within six months, after Ward died, we see no reason why the trial court should have sustained the demurrer. Ackerson v. National Zinc Co., 96 Kan. 781, 153 Pac. 530. It is next insisted that if it sufficiently appeared from the allegations in the petition that appellees were entitled to compensation provided for in the act, the right to hear and determine the matter in the first instance was in the Industrial Accident Board alone, and that the court below therefore was without power to hear and determine it as he did. The argument is that by the terms of the act, properly construed, “no suit,” quoting from appellants’ brief— “can be brought upon a disputed claim until it has first been adjudicated by the Industrial Accident Board, and in the event the decision is not accepted suit may be brought upon the claim in the nature of an appeal from the findings of the board.” This court held to the contrary of the contention in the (to the writer) satisfactory opinions by Justice Levy in Fidelity & Casualty Co. v. House, 191 S. W. 155, and Roach v. Employers’ Ins. Ass’n, 195 S. W. 328. As we view the matter, the conclusion reached in those cases was a sound one. Other objections to the judgment are set out in the assignments, but we think none of them presents a reason why it should be reversed. Therefore it is affirmed.