Mains v. The J. E. Harris Co.

• Decision Date: 15 March 1938
• Docket Number: (CC 585)
• Parties: Thomas Mains, Inf., etc. v. The J. E. Harris Company
• Court: West Virginia Supreme Court

119 W.Va. 730

Thomas Mains, Inf., etc.

v.The J. E. Harris Company

(CC 585)

Supreme Court of Appeals of West Virginia.

Submitted March 1, 1938.

Decided March 15, 1938.

1. Workmen's Compensation

A minor who is not prohibited under general law from working in employments covered by the workmen's compen- sation act (Code 1931, Chapter 23), and who may bind himself, under that act, by remaining in one of such employments, after notice that his employer is a subscriber to the compensation fund, is sui juris for the purpose of making an election between the fund and an action at law where he had no notice, either actual or constructive, until after the injury, that his employer was in fact a subscriber.

2. Workmen's Compensation

The filing of claims for hospital bills and nurse hire with the compensation commissioner, on the forms provided by the latter, is sufficient to show that the employee, after injury, had actual notice that the employer was a subscriber to the fund, and such action of the employee is ipso facto an election on his part to rely upon the act, and is a bar to recovery at common law.

Kenna, Judge, absent.

Certified from Circuit Court, Wood County.

Action of trespass on the case by Thomas Mains, an infant, 18 years of age, against the J. E. Harris Company, for injuries sustained by the plaintiff while in the defendant's employ. The court sustained a demurrer to the defendant's special plea No. 4, and the matter was certified to the Supreme Court of Appeals.

Ruling reversed; demurrer overruled.

Hoff & Moore, T. M. McIntire and K. C. Moore, for plaintiff.

Ambler, McCluer & Ambler and Robert R. McDougle, for defendant.

Riley, Judge:

This certificate involves the sufficiency of a special plea, a demurrer thereto having been sustained.

Thomas Mains, an infant, eighteen years of age, instituted an action of trespass on the case against the J. E. Harris Company, a corporation, for damages sustained while in its employ, alleging in his declaration, for purpose of negativing the application of the compensation act, that the defendant, although a subscriber, did not post or keep posted in conspicuous places about its place of business typewritten or printed notices, or otherwise inform or notify the claimant of its election to make payments into the compensation fund, and, further, that the plaintiff did not otherwise have or obtain knowledge or notice of such fact until after the injury, for which he claims damages.

The defendant, for special plea, avers in plea No. 4 (which embodies, and, by agreement, was substituted for, all former special pleas), among other things, that between the date of the injury and the institution of the foregoing action, a number of applications, on forms furnished by the compensation department, for payment out of the fund of claims for hospital bills and nurse hire "on account of injuries sustained by me and compensation due me on account," etc., were executed by plaintiff, and that checks were issued therefor; that subsequent to institution of the law action, an application for payment of a doctor's bill was filed and paid, and an application made for compensation, with request, in case of an award, that payments be withheld until after disposition of the law action; and that the filing of said several applications, incorporated in said plea, and receipt of benefits thereunder from the fund, constituted an election on the part of the plaintiff, to take under the compensation act, and barred his action at law.

The precise question raised on this certificate, therefore, is whether an infant, who, prior to injury, had neither actual nor constructive notice that his employer was a subscriber to the workmen's compensation fund, may elect, upon notice subsequent to injury, to accept the benefits of the compensation act in lieu of an action at law, and whether the filing of claims prior to the law action amounted to an election. If so, the circuit court was in error in its rulings.

The underlying purpose of our workmen's compensation law (Code 1931, Chapter 23) is to provide a system whereby injuries due to industry may be liquidated and balanced in money in the course of consumption. So, in the interpretation of the law, the interests of the pub- lic, as well as those of the employee and employer, are to be considered. Our act not only protects the employer against the risks and hazards in actions at law and the burden and expense of such litigation and counsel fees, but in many cases affords the employee the only means of compensation. It also provides for immediate medical attention and hospitalization. Long Flame Coal Co. v. State Compensation Commissioner, 111 W. Va. 409, 163 S. E. 16; Rhodes V. B. B. Coal Co., 79 W. Va. 71, 90 S. E. 796.

An employer, after notice, either actual or constructive, to his employees of his election to pay into the workmen's compensation fund (Code 1931, 23-2-6, 7), is thereby relieved from any and all civil responsibilities at common law, growing out of or in any way connected with the injury or death of an employee remaining in his service. Daniels V. Charles Boldt Co., 78 W. Va. 124, 88 S. E. 613; Adkins V. Hope Engineering, etc., Co., 81 W. Va. 449, 94 S. E. 506; Maynard V. Island Creek Coal Co., 115 W. Va. 249, 175 S. E. 70. So, where such notice has been given, every...