McDaniel v. State Compensation Commissioner , 121 W. Va. 60 ( 1939 )

I respectfully dissent from the holding of the majority in this case. In Wood Coal Company v. Compensation Com'r., 119 W. Va. 581,195 S.E. 528, we held: "Accrued compensation made under Code, 23-4-6 is awarded compensation due and payable." The effect of the present holding is that compensation to which the deceased claimant may have been entitled under an award which, on his own appeal, had been set aside, and which might ultimately have been awarded him in the proceeding pending before the Compensation Commissioner at the date of his death, is "accrued compensation" within the meaning of the same section. The two holdings cannot, in my opinion, be reconciled.

The deceased claimant was dissatisfied with the award made to him by the Compensation Commissioner and the Appeal Board, and exercised his right of appeal to this court. Our decision held him entitled to have considered injuries which he had sustained in 1903, the effect of which, in all probability, would have increased the award of compensation. But the award theretofore made was set aside, and before a new award was made, claimant died. If "accrued compensation" means "awarded compensation, due and payable", then, clearly, there was no accrued compensation at the date of claimant's death.

I cannot distinguish this case from other cases where money recovery is sought on an alleged right. The fact that a workman's right of recovery rests on a statute, and is based on humanitarian motives, does not make his case different, as respects the effects of orders entered on his claim, from cases where recovery is sought in other tribunals, and on some other basis. Frequently a plaintiff is dissatisfied with a decree or judgment on account of alleged inadequacy. When by appeal or writ of error he secures a reversal on that ground, the judgment or decree complained of is set aside, and thereafter has no force or effect for any purpose whatever, and a trialde novo is had. He takes the risk involved in surrendering the decree or judgment he has already obtained. The new judgment or decree may be for a greater or less amount, and the fact that the decision of the appellate court may place him in a more favorable position is immaterial. He cannot rely on a former position based on an adjudication which the appellate court has nullified. This is, I think, accepted law.

In the case before us, the rule applicable to cases of law or equity creates an unfortunate situation, from the standpoint of the widow of the claimant; but that situation grows out of the deceased claimant's deliberate act whereby he lost the effect of the award from which he appealed. The Wood case, in my judgment, is conclusive of the question presented. The case before us is an appealing one, but liberal construction of the compensation act should not be extended to the point of conflicting with well established legal principles and the decisions of this court.

I am authorized to state that Judge Hatcher concurs in this note of dissent.