Johnson v. Lanifero.
| Decision Date | 30 July 1947 |
| Docket Number | No. 1787.,1787. |
| Citation | 54 A.2d 412 |
| Parties | JOHNSON v. LANIFERO. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Providence and Bristol Counties; G. Frederick Frost, Judge.
Proceeding under the Workmen's Compensation Act by Ruth Johnson, claimant, administratrix of the estate of Carl H. Johnson, deceased, opposed by Rose Lanifero, doing business as the Rhode Island Contracting Company, employer. From a decree in favor of claimant, the employer appeals.
Appeal dismissed; decree affirmed.
Francis J. O'Brien, of Providence, for petitioner.
Eugene J. Sullivan, Jr., of Providence, for respondent.
This is a petition filed under the provisions of the Workmen's Compensation Act, General Laws 1938, chapter 300, by the administratrix of the estate of Carl H. Johnson, hereinafter referred to as the deceased, in order to obtain compensation for his two dependent daughters, on the ground that he died by reason of an injury by accident arising out of and in the course of his employment by the respondent. After a hearing in the superior court the trial justice entered a decree ordering a weekly payment for a definite period of a certain sum of money to the petitioner, as compensation for the benefit of deceased's daughters, to be divided equally between them. From the entry of this decree the respondent duly prosecuted her appeal to this court.
No evidence was submitted by the respondent. From evidence introduced by the petitioner it appeared that the deceased was a widower, and that she was his sister and aunt of his two daughters, who were respectively 17 and 15 years of age on March 13, 1945, the date of the accident from which he died in the Rhode Island Hospital March 15, 1945. The evidence also showed that the respondent's husband, the deceased and several other men who were employed by her were active members of the police or fire department of the city of Providence in this state, and were permitted by the city government during the war emergency to do other work in their free time. The deceased was a regular member of the city police force assigned to night duty.
He had worked for the respondent for at least a year prior to the accident as an ordinary handy man or laborer, his pay being 85 cents an hour. On the morning of March 13, 1945 he and two or three other employees of the respondent reported at the plant of the Gorham Manufacturing Company, hereinafter called the Gorham Company, in Providence. For use in their work they had a 1937 GMC pickup truck, so called, belonging to the respondent. During that morning they moved materials and supplies in this truck from one building to another in the plant, and they also cleaned up a yard in the rear of one of the buildings. They were allowed a half hour from 12 o'clock noon to 12:30 p.m. for lunch and some of the men, including the deceased, went in the truck to the plant cafeteria to get their meal.
After finishing lunch the men re-entered the truck, one of them acting as operator, another riding in the body of the truck and the deceased standing on its running board on the driver's side and facing toward the rear. The truck was then driven slowly a few hundred feet from the cafeteria to the carpenter shop, where an employee of the Gorham Company was to tell the men what work they were to do that afternoon. As the truck was proceeding at a speed of from five to eight miles per hour, and was gradually stopping in front of the carpenter shop, the deceased suddenly fell from the running board toward the front and clear of the truck, landing on his back and striking his head on the macadam road. He became unconscious and was moved as soon as possible in an ambulance to the Rhode Island Hospital where he died two days later, without regaining sufficient consciousness to enable him to tell how he happened to fall. The cause of death is stated in the following language in his death certificate: ‘Skull Fracture Brain Laceration Subdural Hematoma Brain Hemorrhage & Decompression’.
By way of defense the respondent first argues that the petitioner is not the proper party to bring this petition, but that it should have been brought by the deceased's daughters, either by a next friend or a guardian. We do not agree with this contention. According to G.L.1938, chap. 300, art. III, § 2, when death has resulted from the injury and there is a dispute, any person in interest may file in the office of the director of labor a petition setting forth the material facts and asking for compensation. Undoubtedly the deceased's daughters as dependents are persons in interest and could have brought the petition, but they are not necessarily the only persons in interest, by virtue of another statutory provision.
General Laws 1938, chap. 300, art. II, § 15, is in part as follows: In this section the compensation is made payable in the first instance to the legal representative of the deceased employee who, in the instant cause, was the petitioner, the administratrix of his estate. Since the statute contains the above specific provision, it is our opinion that the legal representative of the deceased employee must clearly be considered a person in interest who may properly file a petition for compensation. Such being the case we find that the present petition is correctly brought. Cases cited by the respondent in this connection are not in point.
The respondent next maintains that the deceased was not an employee and, in any event, was not her employee within the meaning of the workmen's compensation act. She calls our attention to G.L.1938, chap. 300, art. IX, § 1(b) where the following language is used: . The respondent contends that, as a matter of law, the deceased's employment was of a casual nature and therefore under the statute he was not an employee within the meaning of the act.
If the deceased's employment came within this definition he would not be an employee under the act; but if his employment was found not to be within this exclusion, as it was defined by this court in the case of Gibbons v. United Electric Rys. Co., 48 R.I. 353, 138 A. 175, he would be within the provisions of the act. In reference to this part of the act the court in the Gibbons case said, 48 R.I. at page 355, 138 A. at page 176, in finding that the petitioner was entitled to compensation: ‘The employment of the petitioner might well be regarded as casual in that the period of its continuance was uncertain and that the employment was occasional, but that circumstance is not sufficient to bar the petitioner from compensation under the act unless the employment was also not for the purpose of the employer's business.’ In the circumstances we do not agree with the respondent's contention that the deceased's employment was of a casual nature. We are of the opinion that he was an employee under the act and that the exclusion provision of the statute has no application in this cause.
It is also contended on behalf of the respondent that if the deceased was an employee under the act, then as a...
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