DocketNumber: CC 585
Citation Numbers: 197 S.E. 10, 119 W. Va. 730, 117 A.L.R. 511, 1938 W. Va. LEXIS 33
Judges: Riley
Filed Date: 3/15/1938
Status: Precedential
Modified Date: 11/16/2024
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 *Page 732 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 public, *Page 733
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 FlameCoal Co. v. State Compensation Commissioner,
An employer, after notice, either actual or constructive, to his employees of his election to pay into the workmen's compensation fund (Code 1931,
But what of an employee who has not reached his majority? May he waive lack of notice as effectively as an adult? Claimant says "No!" He takes the position that the failure to give notice prior to the accident left him outside the act, so far as an election of remedies was concerned, and that the filing of the several applications and the acceptance of benefits from the fund should be given no more consideration than a settlement out of court at common law; that only a judgment in an action at law by his next friend would be binding upon him.
Mains was clearly of an age when he could lawfully be permitted to work without any special permit or license. If he had had notice, actual or constructive, prior to the injury, and he remained in the employ of defendant, he would be bound as fully as any adult employee (Code 1931,
We, therefore, are of the opinion that the demurrer should be overruled and the defendant's special plea No. 4 upheld, and so certify.
Ruling reversed; demurrer overruled.
Long Flame Coal Co. v. State Compensation Commissioner , 111 W. Va. 409 ( 1932 )
Maynard v. Island Creek Coal Co. , 115 W. Va. 249 ( 1934 )
McVey v. Chesapeake & Potomac Telephone Co. , 103 W. Va. 519 ( 1927 )
Adams v. Kentucky & West Virginia Power Co. , 102 W. Va. 66 ( 1926 )
Johnson v. United States. The Patrol Boat No. Q- 14 , 186 F.2d 120 ( 1950 )
Thorne v. WLR Foods, Inc. , 111 F. Supp. 2d 744 ( 2000 )
Canterbury v. Valley Bell Dairy Company , 142 W. Va. 154 ( 1956 )
Bernard D. Fair, Jr. v. Korhumel Steel and Aluminum Company,... , 473 F.2d 703 ( 1973 )
Bell v. Vecellio & Grogan, Inc. , 197 W. Va. 138 ( 1996 )
State Ex Rel. ACF Industries, Inc. v. Vieweg , 204 W. Va. 525 ( 1999 )
Rogers v. State Compensation Commissioner , 140 W. Va. 376 ( 1954 )