Wells v. Radville
Decision Date | 13 January 1931 |
Citation | 153 A. 154,112 Conn. 459 |
Court | Connecticut Supreme Court |
Parties | WELLS v. RADVILLE et al. |
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.
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.
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 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 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 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. '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: Section 5258 provides:
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 and bring suit at law for damages.
In construing their own Compensation Acts, the courts of the various states have generally adopted this view. In the case of Chicago, R.I. & P. R. Co. v. Fuller, 105 Kan. 608, 186 P. 127, 130, the court said: The same conclusion was arrived at in New Jersey, Young v. Sterling Leather Works, 91 N. J. Law, 289, 293, 102 A. 395, 397; in Massachusetts, Gilbert v. Wire Goods Co., 233 Mass. 570, 572, 124 N.E. 479, 480; and elsewhere, Elkhorn Coal Corporation v. Diets, 225 Ky. 753, 757, 9 S.W.(2d) 1100, 1102; Rasi v. Howard Manufacturing Co., 109 Wash. 524, 526, 187 P. 327, 328; Noreen v. William Vogel & Bros., 231 N.Y. 317, 322, 132 N.E. 102, 103.
It is true that a somewhat different conclusion was reached in New Hampshire, Moore v. Hoyt, 80 N.H. 168, 116 A. 29, although the precise question here presented did not arise in that case. Under the New Hampshire statute, a right of election was given to the injured workman, after injury, to accept benefits under the Compensation Statute or sue at law. In that case, the minor had accepted compensation after the injury, tendered it back, and sued at law, and, it was held, that the minor was not precluded by his acceptance of benefits under the Compensation Act from suing at law. The English case of Stevens v. Dudbridge Iron Works Co., (1904) 2 K. B. 225, arose under a similar statutory provision.
Under our Compensation Act, an agreement to accept its provisions is conclusively presumed from the fact of employment unless notices of withdrawal are given as prescribed. It is a contract implied by the law from the relationship of employer and employee for the benefit of both parties. Whereas a minor is not held to the performance of his contractual agreements as such, because the law recognizes his immaturity and inability to protect himself; yet, on the other hand, when the contract is for his benefit, the law imposes upon a minor an obligation binding upon him, such as the obligation...
To continue reading
Request your trial-
Blancato v. Feldspar Corp.
...ruling in Kenez that an illegally employed minor is an employee within the terms of the act, and upon the case of Wells v. Radville, 112 Conn. 459, 463, 153 A. 154 (1931), which had held that the administrator of the estate of a minor who had been legally employed cannot sue the employer in......
-
Saccente v. LaFlamme
...avoid an employment contract but only where he had been illegally employed in violation of the child labor laws. In Wells v. Radville, 112 Conn. 459, 465, 153 A. 154 (1931), the court held that "the contract implied by the Compensation Act, that both parties agree to accept its benefits and......
-
Johnson v. United States, 6098.
...referred to. 2 Affirmed by the Supreme Court 71 S.Ct. 153. 3 See also Mandel v. U. S., D.C.E.D.Pa., 74 F.Supp. 754. 4 Wells v. Radville, 112 Conn. 459, 153 A. 154; Young v. Sterling Leather Works, 91 N.J.L. 289, 102 A. 395; Mains v. J. E. Harris Co., 119 W.Va. 730, 197 S.E. 10, 117 A.L.R. 5......
-
Bogoratt v. Pratt & Whitney Aircraft Co.
... ... is ... substituted for the common-law rights and liabilities ... otherwise existing between them. to the excitision of the ... latter. Wells v. Radville. 112 Conn. 459. 463, 153 ... A. 154. Our decisions leave no doubt as to our conception of ... the meaning, scope, and effect of ... ...