Wells v. Radville

• Court: Supreme Court of Connecticut
• Citation: 153 A. 154,112 Conn. 459
• Decision Date: 13 January 1931
• Parties: WELLS v. RADVILLE et al.

153 A. 154

112 Conn. 459

WELLS
v.
RADVILLE et al.

Supreme Court of Errors of Connecticut.

January 13, 1931

Appeal from Superior Court, Hartford County; Alfred E. Baldwin, Judge.

Action by Henry A. Wells, administrator, against Joseph Radville and others, to recover damages for the death of plaintiff's decedent. Verdict and judgment for plaintiff, motion by defendant Max Lavitt and another to set aside the verdict as contrary to the evidence and law and excessive was denied, and they appeal.

Error, and new trial ordered as to defendants Max Lavitt and another. [153 A. 155]

Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

DeLancey S. Pelgrift, of Hartford, and Willian W. Greenstein, of New Britain, for appellants.

Ralph O. Wells and William S. Locke, both of Hartford, for appellee.

AVERY, J.

The defendants Max Lavitt and Paul Lavitt were partners in business, raising tobacco on several farms in the town of Ellington. On July 26, 1928, at the time of the injury and death of plaintiff's decedent, Robert Ellsworth Wells, of Rockville, these defendants were employing about four hundred persons in the operations of their farms. They provided transportation for such of their employees as came from distant towns, from their places of residence to and from the farms. The employees came from various adjoining towns-Hartford, Manchester, Rockville, and others. The Lavitts used eight trucks in transporting their employees, two of their own and six hired. Joseph Radville, with his truck, was hired for this purpose. Radville had no connection with the [112 Conn. 461] Lavitts, except the transportation of their employees. On the 26th of July, 1928, in the afternoon, a truck owned and operated by Radville, and transporting some forty-eight employees from the Lavitt farm in Ellington to Manchester and Hartford, upset in the town of Vernon, and burned. The plaintiff's decedent, a boy of eleven years of age, Robert Ellsworth Wells, an employee of the defendants, while being transported to his home in Rockville, was injured in the accident and died as a result thereof.

Max and Paul Lavitt were father and son, conducting the tobacco farms as partners under the name of Max Lavitt; and provided transportation of their employees from their homes to the farms as part of the contract of employment. The injury to plaintiff's decedent thus occurred in the course of, and arose out of, the employment. Flanagan v. Webster & Webster, 107 Conn. 502, 515, 142 A. 201; Whitney v. Hazard Lead Works, 105 Conn. 513, 518, 136 A. 105.

More than a year after the accident (on December 16, 1929), the plaintiff, through his attorneys, tendered back to Max Lavitt the wages Wells had received, and notified Lavitt that the minor's contract of employment was voided. No notice of withdrawal from the Compensation Act was given by or on behalf of employer or employee before the death of Wells. This action was begun by the plaintiff against Radville and the two Lavitts more than six months after the death of Wells but within a year.

This appeal presents the question whether the administrator of the estate of a deceased minor employee, after the death of the minor as the result of an injury received in the course of his employment and arising out of it, may elect to waive the provisions of the Workmen's Compensation Act and bring an action for damages at law, where previous to the death of the [112 Conn. 462] minor no notice of withdrawal had been given by either employer or employee. The provisions of the Workmen's Compensation act, in force at the time of the accident, are now found in the General Statutes 1930, to which reference is made for convenience. Section 5223 defines an employee as " any person who has entered into or works under any contract of service or apprenticeship with an employer. *** ‘ Employer’ shall mean any person, corporation, firm, partnership, voluntary association, joint stock association, [etc.] *** using the services of another for pay," etc. Section 5226 provides: " When any persons in the mutual relation of employer and employee shall have accepted part B of this chapter, the employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained. *** The acceptance of part B of this chapter by employers and employees shall be understood to include the mutual renunciation and waiver of all rights and claims arising out of personal injury sustained in the course of employment as aforesaid, other than rights and claims given by part B of this chapater. [153 A. 156] 'D' Section 5227 provides: " All contracts of employment between an employer and an employee, as such terms are defined in section 5223, *** shall be conclusively presumed to include a mutual agreement between employer and employee to accept part B and become bound thereby, unless either employer or employee shall, by written stipulation in the contract, or by such notice as is prescribed in section 5228, indicate his refusal to accept the provisions of part B." Section 5228 provides: " Acceptance of part B may be withdrawn by written or printed notice from either employer or employee to the other party and to the compensation [112 Conn. 463] commissioner of the district in which the employee is employed. Notice of withdrawal may be served by personal presentation or by registered letter addressed to the person on whom it is to be served at his last known residence or place of business; and such notice shall become effective thirty days after service. Either employer or employee who has withdrawn acceptance may renew the same by the same notice and procedure as is prescribed for withdrawals. Notices in behalf of a minor shall be given by or to his parent or guardian or if there be no parent or guardian then by or to such minor." Section 5258 provides: " When any employee affected by the provisions of this chapter, or any person entitled to compensation hereunder, shall be a minor or mentally incompetent, his parent or duly appointed guardian may, on his behalf, perform any act or duty required or exercise any right conferred by the provisions of this chapter with the same effect as if such person were legally capable to act in his own behalf and had so acted. The commissioner may, for just cause shown, authorize or direct the payment of compensation directly to a minor or to some person nominated by the minor and approved by the commissioner, which person shall act in behalf of such minor."

These sections make it abundantly clear that minors are entitled to the benefits of the Workmen's Compensation Act in all respects on equality with persons who are fully sui juris; and are, by section 5227, conclusively presumed to have agreed to accept the provisions of the act and be bound thereby unless notices of nonacceptance or withdrawal have been filed as is provided therein. It follows, then, that the plaintiff, as administrator, could not, after the death of the decedent, exercise an election to renounce the benefits of the Compensation Act...