Opinion
No. 4153.
Decided November 5, 1952.
An employer is subject to the Workmen's Compensation Act although employing less than five persons (Laws 1947, c. 266, s. 3) where he has elected to accept the provisions of the act and has complied with all its requirements with the exception of actually posting notice as required by section 7. The fact that such notice was not posted did not entitle the decedent's administratrix to maintain a common law action where the decedent and other employees had "actual and verbal notice" that their employer maintained a policy of liability insurance for their benefit and no declaration of election had been filed by the decedent in accordance with section 10 of the act.
PETITION, for a declaratory judgment to determine whether the plaintiffs, the Globe Indemnity Company and Albert I. Pio, are required to defend two actions against the assured, Pio, resulting from the accidental death of Allen E. Hardy arising out of and in the course of his employment by Pio. The parties have filed an agreed statement of facts in which it appears that Pio had in his employ less than five persons but he elected to accept the Workmen's Compensation Law (Laws 1947, c. 266) on September 11, 1947. He complied with all provisions relating to such acceptance except he failed to post notice pursuant to section 7 of the act. However, he was notified by the Commissioner of Labor on September 23, 1947, that he had fulfilled all the provisions of the law and he has ever since maintained an insurance policy such as the statute requires. The deceased from and after September 23, 1947, had "actual and verbal notice" from Pio that he had taken out an insurance policy in the defendant company covering his workmen so that in the case of injury in the course of their employment they would be entitled to medical expenses and compensation. The deceased never filed a declaration with either Pio or the Commissioner of Labor that he did not choose to accept the act as provided for in such cases by section 10 of the law.
On February 8, 1949, Hardy was injured while working for Pio and died shortly afterwards. Subsequently, his administratrix brought a common law action for negligence against Pio on December 28, 1949, and on July 16, 1951, Marion I. Mitchell, who had been appointed guardian of a minor daughter of the deceased, Jeanette V. Hardy, brought suit under the compensation law alleging that the daughter was a dependent. As a result of these proceedings, the Court, Sullivan, J., has transferred to us the following questions of law:
"1. May Gladys Peckham as Administratrix of the estate of Allen E. Hardy maintain her civil action against said Albert I. Pio, the employer.
"2. May Marion I. Mitchell, guardian of Jeanette V. Hardy maintain her petition against said Albert I. Pio and the Globe Indemnity Company for hearing and award under the Workmen's Compensation Act as amended by Laws of 1947.
"3. Is the Insurance Carrier, the Globe Indemnity Company, bound to defend either or both of these actions."
Oscar Neukom for the plaintiffs.
Charles J. Griffin (by brief and orally), for the defendant, Gladys Peckham, administratrix of the estate of Allen E. Hardy.
William H. Sleeper, Robert Shaw and Wayne J. Mullavey (Mr. Mullavey orally), for Marion I. Mitchell, guardian of Jeanette V. Hardy.
The first question before us is whether the plaintiff, Pio, accepted our Workmen's Compensation Law (Laws 1947, c. 266) so that he is liable under its provisions. It is agreed that he has complied with section 3 which reads as follows: "Any employer of less than five persons, or of farm labor or domestic servants may accept the provisions of the chapter by filing an election with the commissioner of labor. Such employer shall thereafter be liable to all his employees in the same manner as other employers." However, the defendant Peckham claims that Pio was not subject to the act because he failed to post notices as required by section 7 which provides, "Every employer subject to this chapter, or who elects to accept its provisions, shall keep posted in a conspicuous place upon his premises a notice that he is working under the provisions of this chapter. If any employer fails to post and keep posted such notice, he shall be liable to a fine of ten dollars for each day of such failure." Section 10 of the same chapter, so far as material here, provides in substance that unless an employee whose employer is subject to this chapter files with his employer and the Commissioner of Labor within fifteen days of the date of his employment a written declaration that he does not accept the compensation law, he shall be deemed to have accepted it and to have waived his rights at common law. The effect of the defendant's argument is that because an employer has failed to fulfill requirement of notice intended for the benefit of an employee, as the above provisions considered together show, the workman must lose his rights under compensation. Thus an employer who violates the law is allowed to profit at the expense of an employee who is blameless. Not only would this result be obnoxious to the spirit of this act and our previous interpretations of it, but it would fly in the face of the plain wording of section 3 which leaves no room for doubt that the Legislature intended to make an employer who filed with the Commissioner of Labor, as did Pio here, "thereafter . . . liable to all of his employees in the same manner as other employers." (Emphasis supplied.) In view of this language, it appears that decisions in other jurisdictions under different statutes or facts are without weight here, and we hold that defendant Pio is subject to our compensation law.
Regarding the rights of the deceased, it is agreed that "Pio had in his employ less than five persons but elected to accept the provisions of the Compensation Act, September 11, 1947; that he complied with all the provisions relating to such acceptance, other than the posting of notice pursuant to Section 7 of the aforesaid Act, and was notified by the Commissioner of Labor, September 23, 1947, also ran north and south and occupied the northerly third of the that he had complied with the provisions of the Law and has ever since maintained such a policy of insurance." It is also agreed that "Hardy and other employees of Pio from and after September 23, 1947, had actual and verbal notice from Pio that he had taken out a policy of insurance through the Globe Indemnity Company, covering his workmen, which in event of injury to employees, in the course of employment, would give rise to benefits by way of medical expenses and compensation." While it is not entirely clear from these agreed facts whether Hardy fully understood that his employer had accepted the act, yet it is plain that the "actual and verbal notice" given him was sufficient to put him on inquiry to look into the situation if he had any doubt about it. He filed no declaration that he did not choose to accept the act under Laws 1947, c. 266, s. 10, and we believe it must be presumed he accepted it. Cf. Courage v. Carleton, 96 N.H. 348, and cases cited. This being so the guardian of the minor child is entitled to maintain her action. Hirsch v. Company, 97 N.H. 480, decided this day. It follows that the common law action of the administratrix must be dismissed, and the plaintiff, the Globe Indemnity Company, must defend the action brought by the guardian.
Case discharged.
GOODNOW, J., was absent: the others concurred.