The plantiff in error, upon rehearing, contends the court failed to pass upon a question decisive of the case, that was duly submitted, to wit: That the appeal should have been dismissed for the following reasons: Jack Allen was injured on or about May 28, 1920, and thereafter an award was made by the Industrial Commission awarding him compensation at the rate of $18 per week. The payments were not made as they became due under said award, but a proceeding was instituted in this court to reverse said award. While said cause was pending in this court, Jack Allen died on July 25, 1922. Esther Allen was appointed administratrix of the estate of Jack Allen, and filed a motion in this court to revive the proceeding pending herein in her name as administratrix. Objection was filed to said motion, by the insurance company and employer, and moved that the proceedings in this court be dismissed on October 10, 1922, this court made an order reviving the action in the name of the administratrix. While no written *Page 104 opinion was filed by the court, the order reviving the action over the objections of the employe overruled the motion to dismiss. The opinion in the case does not refer to the ruling on the motion, for the reason the same had been acted upon prior to the time of preparing the opinion and the court considered that question settled. In view of a former decision of this court, we will refer to the question of the motion to dismiss upon rehearing. It is contended upon authority of Lahoma Oil Co. v. State Industrial Commission, 71 Oklahoma,175 P. 836, that the court erred in permitting the action to be revived, and should have dismissed the case.
In the case of Lahoma Oil Co. v. Industrial Commission, supra. the court held in the first paragraph of the syllabus in substance that under the Workmen's Compensation Act, where a person had secured an award and died before the maximum number of payments had been made, according to the terms of the award, the right to compensation under the award ceased with the death of the claimant.
The court, no doubt, announced the right principle of law as the law existed at that time, but the Workmen's Compensation law has been amended since the rendering of that decision. The Legislature having amended section. 2, art. 6, ch. 246, Session Laws 1915, and section 10, art. 5, sec. 246, Session Laws 1915 being sections 7337 and 7339, respectively, of Compiled Stat. 1921. We think, however, the court in the case of Lahoma Oil Company v. State Industrial Commission committed error in dismissing the appeal. The fact that an award had been made and a proceeding commenced in this court to reverse the same should not prevent the collection of the amount due under the award at the date of the death of the claimant, unless the award reversed by this court. In the Lahoma Oil Company v. State Industrial Commission Case, this court cites the case of Erie Ry. Co. v. Callaway (N.J.) 102 A. 6. That case does not hold that the amount due under an award at the time of the death of the claimant cannot be collected. In that case, the court said:
"Callaway died April 5, 1915, from causes other than the injuries which he received as a result of the accident. The compensation was paid to April 2, 1915. There remains due $2.14 of compensation accrued during his lifetime. As to this there is no dispute. The difficulty arises out of the effort of his widow, as executrix of his will, to collect the weekly sum of $5 since his death and until the end of the 400 weeks."
If we apply the rule announced in the Lahoma Oil Co. Case the executrix could not have collected the $2.14 after the death of the claimant, and in that case it was conceded by both sides that the same could be collected. The ease of In re Murphy. In re Aetna Life Ins. Co., and In re Holyoke Supply Co. (Mass.)113 N.E. 283, is also cited. We do not think that case has any application to the case at bar. That case was construing a portion of the Workmen's Compensation Act which provided that where the employe was killed certain payments should be made to his dependents, An award was made so much a week to the father, and so much a week to the mother. Thereafter the mother died, having received the full amount due her up to the time of her death. The question presented was whether upon her death her husband could collect not only the award that had been awarded to him, but the unearned award that had been awarded to his wife. The court in that case said:
"We are of the 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."
That case does not even consider the question of whether at the date of the death of the claimant the administratrix could collect the award that was due and unpaid.
The case of Wozneak v. Buffalo Gas Co., 161 N.Y. Supp. 675, is also cited. This was an opinion by a divided court, three in favor of the opinion and two dissenting. A portion of the second paragraph of the syllabus is as follows:
"An award by weekly payments does not give the employe a vested interest in the payments not due, and the right to such payments does not survive his death from natural causes."
The third paragraph of the syllabus is as follows:
"Under Workmen's Compensation Law, par, 33, providing that compensation and benefits shall be paid only to employes or their dependents, any payments accruing after the death of a workman are payable to the dependents, not to the workman's personal representative."
In all the above cases cited and relied upon, the court was not considering the portion of the award due and unpaid at the date of the death of deceased, but was only considering the portion of the award unearned and not due. In the instant case *Page 105 the award from the date of the award up to the time of the death of claimant was due and payable. The payments, however, were suspended by virtue of the proceeding pending in this court to reverse the award, and upon affirming the award there can be no question that the amount due up to date of the death of the claimant can be collected. The syllabus in the case of Lahoma Oil Co. does not announce the law to be, if the claimant dies pending proceedings to reverse the award, that the amount of the award due at the date of the death cannot be collected. The force and effect of the opinion by dismissing the appeal did have this force and effect. In that we think the court was in error.
The opinion in the case of Lahoma Oil Co. v. Industrial Commission, supra, is overruled, in so far as it holds that under the law as it existed at that time the heirs or representatives of the claimant cannot collect the amount of the award due and earned at the date of the death of claimant.
This court has announced the rule:
"The Workmen's Compensation Law should be construed fairly and liberally in favor of the employe."
This construction of law would be violated if we hold that, pending proceedings to reverse the award, the death of deceased would defeat payment of the award earned and unpaid. This would be a strained construction, and not according to the policy of the law. We therefore hold, if the award is not reversed, the amount due under the award up to the date of the death may be collected, and this court will retain jurisdiction and pass upon the validity of the award. In the instant case there was a motion to dismiss upon the grounds that the claimant had died, and a demurrer filed to the motion, which was sustained. There are questions that may be involved in determining whether the full award can be collected, and are not determined, and should not be under the record, but should be when the case is brought in the regular manner.
If there is any portion of the award that is earned, the award may be reviewed. A portion of the award at least was a subject of controversy in this court, and the motion to dismiss was properly overruled.
JOHNSON, C. J., and NICHOLSON, COCHRAN, and MASON, JJ., concur.