Stavola v. Palmer

• Decision Date: 23 May 1950
• Citation: 73 A.2d 831,136 Conn. 670
• Court: Connecticut Supreme Court
• Parties: STAVOLA v. PALMER et al. Supreme Court of Errors of Connecticut

Page 831

73 A.2d 831

136 Conn. 670

STAVOLA v. PALMER et al.

Supreme Court of Errors of Connecticut.

May 23, 1950.

Thomas J. O'Sullivan, New Haven, with whom, on the brief, was Edwin H. Hall, New Haven, for appellants (defendants).

Samuel H. Platcow, New Haven, for appellee (plaintiff).

Before BROWN, C. J., JENNINGS, BALDWIN and INGLIS, JJ., and ALCORN, Superior Court Judge.

INGLIS, Judge.

The plaintiff's employee was killed when he drove the plaintiff's truck across a railroad grade crossing in Windsor. The plaintiff, in the second count of his complaint, alleges that the death of his employee was caused by the negligence of the defendants. He seeks to recover the workmen's compensation which he is obligated to pay to the dependents of the deceased. The appeal raises the questions whether the action is maintainable without citing in the personal representative of the deceased employee as a party, whether there was error in the charge and whether, upon the evidence, the deceased employee was guilty of contributory negligence as a matter of law.

The plaintiff's claims of proof are: On May 2, 1946, the plaintiff had his brother, Matthew Stavola, in his employ as a truck driver. On that day Matthew was driving a truck in an easterly direction on Meadow Road in Windsor. The driver's seat on the truck was inclosed in a cab. Meadow Road crossed the double tracks of the New York, New Haven and Hartford Railroad Company, of which the defendant trustees were the trustees in bankruptcy. As Matthew approached the railroad crossing he brought his truck to a stop about fifty or seventy-five feet to the west of it. He then shifted into first gear and drove onto the crossing. When he reached the easterly set of tracks the truck was struck by a train proceeding in a northerly direction, and as a result of the collision he was killed.

Meadow Road was an oiled surface road about twelve feet wide, and there was wooden planking between the rails of each set of tracks. In May, 1946, the volume of traffic on the road at the crossing consisted of approximately two hundred vehicles and pedestrians daily. There was no evidence that Meadow Road had been laid out as a highway by any public authority, but the plaintiff claimed that it was a highway. It served a large farm which lay on both sides of the tracks and included several structures and two dwellings to the east of the tracks; it also served another dwelling on the east side of the tracks and extended on to the Connecticut River.

The plaintiff claims that the collision was caused by the negligence of the employees of the railroad in that they operated the train at an excessive speed, failed to keep a proper lookout for traffic crossing the tracks at the place in question, although they should have known that the crossing was customarily used by large numbers of people, and did not blow the whistle or ring the bell on the engine when it was approaching and within eighty rods of the crossing. As regards the issue of contributory negligence, the plaintiff's claim is that the road crossed the tracks at such an angle that the right side and back of the cab of the truck which Matthew was driving obstructed his view of the tracks upon which the train was approaching and that, therefore, his failure to see the train did not constitute negligence.

The defendants' claim of proof, in so far as material to the questions raised by the appeal, are as follows: To the east of the tracks Meadow Road led only into a private farm and through that farm to the Connecticut River. At the railroad crossing on the road were signs which read: 'Warning, Private Crossing, R. R., Use At Your Risk.' Meadow Road at the crossing was not a highway but a private way. There was nothing south of Meadow Road to prevent a person approaching the crossing from the west from seeing down the railroad tracks for approximately one thousand feet.

The trial court found that, on May 15, 1946, the compensation commissioner made a finding and award wherein the plaintiff and his insurer were ordered to pay to Molly L. Stavola, the decedent's widow, compensation at the rate of $30 per week commencing May 3, 1946, and continuing for not longer than the period of 312 weeks provided by law, subject to proper modification should she die or remarry before the expiration of that period. They were further ordered to pay a burial fee of $250. This award was made by reason of Matthew's death arising out of and in the course of his employment by the plaintiff. The total amount which the plaintiff and his insurer will have to pay under the award will not exceed $9610. The court also found that the widow is the duly appointed administratrix of Matthew Stavola's estate and that the plaintiff, upon bringing this action, notified her in writing by registered mail of its pendency, but she did not join as a party plaintiff.

The defendants contend that the plaintiff could not maintain this action without making the administratrix of his deceased employee a party. They laid the foundation for this contention by objecting to the admission of evidence tending to establish their liability to the administratrix and the amount of the damage to which she would have been entitled if she had been party and by objecting to the charge, which was, in essence, that the plaintiff had the right to sue for the amount of workmen's compensation he was obligated to pay, but that his right to recover did not exist unless he proved the liability of the defendants for his employee's death, and that recovery was limited in amount to such sum as the administratrix could have recovered. Although conceding that the statute which governs this action, now General Statutes, § 7425, ¹ gives the plaintiff a substantive right, the defendants say it makes no provision as to how that right is to be enforced. They argue that the confusion bound to result in the minds of a jury by the admission of the evidence and the charge complained of would not arise in an action in which the only question to be passed upon by the jury is the liability to the administratrix and where it is left to the court to apportion the damages awarded by the jury between the administratrix and the compensation payer. It follows, they contend, that the legislature could not have intended, at lease in a case in which the basis of the action is a claimed wrongful death, that the employer could sue the tort feasor for compensation which he is obligated to pay without joining the administrator of the deceased employee so that the case could go to the jury on the single question of the amount of the liability of the tort feasor to the administrator.

We have held that § 7425 is to be so interpreted that wherever the word employee is used therein it is intended to include the personal representative of a deceased employee. Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612. Accordingly, such rights as are given by the statute to an employer are his irrespective of whether the liability of the tort feasor is to an injured employee personally or to his personal representative. The statute gives to an employer the substantive right to reimbursement of the workmen's compensation which he has become obligated to pay. On occasion we have referred to that right as in effect one of subrogation to the right of the injured employee to recover for the tort committed against him. Mickel v. New England Coal & Coke Co., 132 Conn. 671, 680, 47 A.2d 187, 171 A.L.R. 1001. In a case of wrongful death that description of the right is not technically accurate. If the right of a compensation payer to recover from a third party tort feasor rests upon principles of subrogation at all, it is upon the theory that he has satisfied an obligation to his employee which was primarily the obligation of the tort feasor. Where, however, an employee dies as the result of injuries arising out of and in the course of his employment the workmen's compensation is paid to the dependents of the deceased. It is not those dependents who have the cause of action against the third party tort feasor. It is the administrator of the decedent who has that cause of action. Technically, therefore, the making of the payment to the decedent's dependents could not subrogate the employer to the cause of action which the decedent's administrator has. More accurately, the right which the statute gives to the employer is, as we also said in the Mickel case, 132 Conn. at page 679, 47 A.2d 187, a derivative right. The theory of the statute is that by causing the death of the employee the tort feasor injured the employer to the extent that he has to pay compensation. The situation is analogous to that of a husband injured by reason of an injury to his wife caused by a tort feasor. The husband has a right to recover the expense which has been imposed upon him for his wife's medical expenses, but his right is derived from his wife's right of action. The employer has the right to recover for the injury done him by the tort feasor who caused the death of his employee. His right is derived from the employee's right, which survived to his personal representative. For that reason, the right of the employer depends upon the employee's right to the extent that he has no cause of action unless the employee or his representative has a cause of action, and he cannot recover any more than the employee himself or his representative could recover. Subject to those limitations, the right which the employer is given by the statute is his. It is not the right of the employee or his personal representative.

The statute provides: 'No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him.' It also provides that, if either the employer or the employee fails to join in an action instituted by the other against a tort feasor within thirty days after notification by that other, his...