Lopes v. B. B. & R. Knight, Inc.

• Decision Date: 04 February 1929
• Docket Number: No. 843.,843.
• Citation: 144 A. 439
• Parties: LOPES v. B. B. & R. KNIGHT, Inc.
• Court: Rhode Island Supreme Court

144 A. 439

LOPES

v. B. B. & R. KNIGHT, Inc.

No. 843.

Supreme Court of Rhode Island.

Feb. 4, 1929.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Suit by Joseph Lopes against B. B. & R. Knight, Inc. From an order denying petitioner's motion to amend his petition, petitioner appeals. Appeal sustained, order reversed, and cause remanded, with direction.

Leroy G. Pilling, of Providence, for appellant.

Quinn, Kernan & Quinn and Michael De Ciantis, all of Providence, for appellee.

SWEBTLAND, C. J. The above-entitled proceeding is a petition filed in reliance upon the provisions of the Workmen's Compensation Act (Gen. Laws 1923, § 1205 et seq.). It is before us upon the petitioner's appeal from a decree of the superior court.

The parties hereto are admittedly subject to the provisions of the Workmen's Compensation Act. The petitioner claims that on December 16, 1926, while he was in the employ of the respondent corporation, at the Nottingham Mill as a night fireman and watchman, he was injured by accident arising out of and in the course of said employment; that the accident was caused by "a flashback" of an oil burner under the boiler and both of the petitioner's hands and his face were burned. On January 3, 192Y, the petitioner and respondent entered into a written agreement, upon a form of agreement furnished by the commissioner of labor. The agreement was signed by the petitioner by making his mark, and was approved by the commissioner of labor on January 11, 1927. In a notation at its top it is designated as the form of a "Preliminary Agreement under Workmen's Compensation Act." The terms of the agreement, essential to the matter before us, are that the respondent should pay to the petitioner compensation at the rate of $14.55 per week for "duration of total incapacity." The agreement also provided as follows: "That in the event of partial incapacity following total incapacity a supplementary agreement shall be made in accordance with the provisions of the 'Workmen's Compensation Act of the State of Rhode Island.'"

It is further claimed by the petitioner that on April 4, 1927, he returned to work for the respondent, not as "night fireman and watchman" but simply as "watchman," although at the same wages which he had received before said accident. This by the assent of the parties marked the end of the "duration of total incapacity" referred to in the preliminary agreement, and no compensation was thereafter paid under that agreement. On April 7, 1927, the respondent and the petitioner signed another written paper on a form provided by the commissioner of labor which had the notation printed at its top that it "is designed for agreement where adjustment is final." In that paper it was recited that the respondent has paid to the petitioner the sum of $223.09 "in full settlement and discharge of all compensation due said Joseph Lopes under the Workmen's Compensation Act * * * for all injuries received" by him in said accident of December 16, 1926. This paper was approved by the commissioner of labor on April 13, 1927.

It further appears that the petitioner's employment by the respondent ceased on December 16, 1927, by reason of the close of the Nottingham Mill by the respondent. The petitioner claims that he then tried to obtain other employment, but, by reason of the condition of his hands, resulting from said accident, he is unable to secure employment at his former weekly wages, and that he is now partially incapacitated by reason of the partial loss of function in both of his hands; that for this condition the petitioner received treatment known as "physiotherapy" at the Rhode Island Hospital from January 20, 1928, to March 24, 1928, during which period he was completely incapacitated and unable to work.

The respondent has not entered Into a "supplementary agreement" with reference to the petitioner's claim of "partial incapacity following total incapacity" in accordance with the terms of the preliminary agreement between the parties approved January 11, 1927, and the respondent contends that, by reason of the so-called agreement approved April 13, 1927, by the terms of which the petitioner admitted the payment to him of $223.09 "in full settlement and discharge of all compensation due said Joseph Lopes under the Workmen's Compensation Act," the respondent is now relieved of all obligation to pay further compensation to the petitioner.

In that state of the relations between the parties, the petitioner on April 6, 1928, filed in the superior court his petition for a review of the agreement approved April 13, 1927, "and prays that it may be decreed that said respondent shall pay compensation for total incapacity during the period of said treatment at the hospital, and shall pay compensation for partial incapacity for such time and in such manner as this court shall decree."

The respondent thereupon moved that there be stricken from said petition all allegations of total incapacity and also the prayer that the petitioner be awarded compensation for total incapacity. The motion of the respondent was granted by the superior court....