O'Bannon Corp. v. Walker

• Decision Date: 19 June 1925
• Docket Number: No. 621.,621.
• Citation: 129 A. 599
• Parties: O'BANNON CORPORATION v. WALKER.
• Court: Rhode Island Supreme Court

129 A. 599

O'BANNON CORPORATION

v. WALKER.

No. 621.

Supreme Court of Rhode Island.

June 19, 1925.

Appeal from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Petition under the Workmen's Compensation Act by the O'Bannon Corporation against Thompson A. Walker. From a decree awarding him compensation provided by such act, respondent appeals. Appeal dismissed, decree affirmed, and cause remanded.

John J. Richards, John P. Beagan, and Edmund F. Beagan, all of Providence, for appellant.

Gardner, Moss & Haslam, of Providence, for appellee.

SWEENEY, J. This is a petition under the Workmen's Compensation Act (Laws 1912, c. 831), filed in the superior court by an employer against its former employee. After hearing the parties, a justice of said court filed his decision finding that the respondent was an "employee" of the petitioner, and a final decree was entered awarding the respondent the compensation provided by said act. The respondent has brought the cause to this court by his appeal, and alleges as reasons therefor that said decree is contrary to the law and the evidence in finding that he was an "employee" of the petitioner whose remuneration did not exceed $1,800 a year as defined in said act.

The petition alleges that December 6, 1918, the respondent received personal injuries while in the course of his employment. The respondent admits that he was thus injured, but contends that he was not an "employee" within the meaning of said act, as his wages or remuneration exceeded $1,800 a year, and therefore is not precluded by said act from pursuing his common-law remedy against petitioner for his injuries.

The facts appearing in the record necessary for a consideration of this appeal are, that September 11, 1918, the petitioner was under contract with the United States to manufacture gun cotton to be used in its war with Germany. The contract was subject to cancellation by the United States, and soon after the signing of the armistice, November 11, 1918, the contract was canceled. For the purpose of helping to manufacture gun cotton, September 11, 1918, the petitioner employed the respondent as a tub man on a night shift in the washhouse. Respondent worked every night until December 6. 1918, when he was accidentally injured. His injuries rendered him unable to resume work for 22 weeks, and in the meantime the manufacture of gun cotton by the petitioner had ceased. The respondent never worked for the petitioner again. While working for the petitioner the respondent worked 13 hours every night, and for all work over 8 hours or done on Sundays or holidays, he received extra pay, with the result that his average earnings for his 12 weeks of service were $44.71 per week.

The petitioner had duly elected to become subject to the provisions of the Workmen's Compensation Act prior to its employment of the respondent. Section 6 of article 1 of said act provides that the employee of an employer who has elected to become subject to the provisions of the act shall be held to have waived his right of action at common law to recover damages for personal injuries, if he shall not have given to his employer at the time of his contract of hire notice in writing that he claimed such right. Section 7 of said article provides that the right to compensation for an injury, and the remedy therefor granted by said act, shall be in lieu of all rights and remedies as to such injury existing either at common law or otherwise. Section 1 of article 2 provides that, if the employee who has not given notice of his claim of common-law rights of action receives a personal injury by accident arising out of and in the course of his employment, he shall be paid the compensation provided in said act by the employer who shall have elected to become...