136 A. 677 (Conn. 1927), Guiliano v. Daniel O'Connell's Sons

Citation:136 A. 677, 105 Conn. 695
Opinion Judge:WHEELER, C.J.
Attorney:Lawrence A. Howard, of Hartford, for appellants. Peter Trenchi, of New Haven, for appellees.
Judge Panel:Maltbie, J., dissenting. Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ. CURTIS, HAINES, and HINMAN, JJ., concur. MALTBIE, J., dissents.
Case Date:March 05, 1927
Court:Supreme Court of Connecticut

Page 677

136 A. 677 (Conn. 1927)

105 Conn. 695




Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Proceedings under the Workmen's Compensation Act by Nick Guiliano and another, employees, against Daniel O'Connell's Sons, employer, and others. The Superior Court on appeal from the finding and award of the Compensation Commissioner for the Third District in favor of claimants dismissed the appeal and affirmed the finding and award, and defendants appeal. Error, judgment set aside, and Superior Court directed to enter its judgment sustaining the appeal.

Maltbie, J., dissenting.

Lawrence A. Howard, of Hartford, for appellants.

Peter Trenchi, of New Haven, for appellees.



The single question upon the appeal is the alleged error of the court in holding that the commissioner did not err in overruling the respondents' claim that the injuries of the claimants did not arise out of and in the course of the employment. The ruling was made by commissioner and court upon an agreed statement of facts which in substance were these: The respondents-employers were engaged in Meriden in building a road. On account of the difficulty in their men procuring lodging the employers rented, in a residential district, a barn in the vicinity of the job, and gave their men the privilege of sleeping in it if they desired. Fourteen of their 21 men had during the week preceding the casualty to claimants' decedent slept in this barn, the rest securing quarters elsewhere. Whether any of these men slept in the barn more than one night during this week does not appear in the agreed facts. No charge was made [105 Conn. 698] by the employers to those sleeping in the barn, or for the use of the gas stove which they had installed in the barn and on which the men were permitted to cook their meals, and no extra pay was given to the men who slept elsewhere.

On Saturday, August 15th, the work of four of these men ended at 5:30 p. m., and they were under no obligation to report for further duty until the Monday morning following, at which time the employers expected they would return to work. The men were paid by the hour and had the right to quit work at any time without notice. At 1 o'clock a. m. on Sunday, August 16th, the barn in which the men were sleeping caught fire, and two of these four men were burned to death; the other two, Nick Guiliano and Frank Di Stazio, plaintiffs-claimants, escaped with minor injuries. In the year preceding, these employers had seven other jobs in none of which had they furnished sleeping lodgings for their men, except in one job in which about 16 out of 60 or 80 employed were furnished sleeping accommodations. Neither the finding, nor the appeal therefrom gives, as they should, the names of the plaintiffs-

Page 678

claimants. The judgment of the superior court does give this.

If the agreed facts show that the claimants' injuries did not arise in the course of their employment they cannot be held to have arisen out of that employment; the disposition of the first of these questions adversely to the claimants' contention would make the disposition of the second question unnecessary. In Larke v. Hancock Mutual Life Insurance Co., 90 Conn. 303, 97 A. 320, L.R.A. 1916E, 584, we determined when an injury to an employee arose out of an employment; we say, at page 308 (97 A. 322):

" An injury to an employee is said to arise in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, [105 Conn. 699] and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it."

In a case handed down at the same term, Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 A. 368, L.R.A. 1916D, 86, we had already held that an injury arising within the scope of the employment was not only one arising while the employee was doing the precise work he was hired to do, or incidental to it, but also something which he was permitted by the employer to do for their mutual convenience. In Harivel v. Hall-Thompson Co., 98 Conn. 753, 755, 120 A. 603, we expressly approved of the statement which we quote from Larke v. Hancock Mutual Life Insurance Co., supra. Richards v. Indianapolis Abattoir Co., 92 Conn. 274, 276, 102 A. 604.

It is beyond controversy that an employee, who is required by the terms of his employment, or as incidental to it, to lodge in quarters furnished by the employer, during such time is, when not engaged in service purely for himself, within the course of his employment. But this general statement does not determine whether these claimants, while they slept in the barn, were engaged in doing something so incidental to their employment as to then bring them within the course of their employment. We must go further and ascertain what acts will be held incidental to their employment, and whether sleeping in this barn could, under the circumstances, be held to be incidental to their employment. If it be so held, it must be further held that the injury occurred within the period of their employment, at a place where they might reasonably be, and while they were fulfilling the duties of their employment. They were in the barn by the permission of their employers, and, if sleeping within the barn was an incident of their employment, it must be held that they were fulfilling the [105 Conn. 700] duties of their employment. So the real disputable questions are, whether the injury occurred within the period of their employment, and whether sleeping in the barn was incidental to their employment. The employment continues so long as the employee is upon the employers' premises for the purposes of his employment.

The period of employment covers the working hours of the employee, and such reasonable time as is required to pass to and from the employers' premises in going to or from work where the employer has, expressly or impliedly, by his knowledge and conduct or acquiescence, included within the term of employment the time in going to or from work. When the employee at the close of his day's work leaves the premises of his employer and passes beyond the area which the employer has expressly or impliedly made incidental to his employment, he is no longer in the course of his employment because its period has ended. When the employer provides him with lodging and requires him to occupy it, during his use of it he will be within the period of his employment when in such occupation, and his use of the lodging will be an incident of his employment, for he is there in compliance with his employers' orders, and, while he obeys these and does not embark upon a frolic or business of his own, he must be held to be in the course of his employment.

When, however, the employer says to the employee, after his day's work is done, " you may grind your ax upon my wheel," the employee in accepting this proffer is not in the course of his employment, for that has ceased; he is fulfilling, not the duties of his employment, but his own personal desire. Privileges such as this, though they would not have been accorded him unless he had been in the service of his employer, [105 Conn. 701] cannot be held to be incidents of his employment. If when these claimants had finished their day's work at 5:30 and left their employers' premises and gone to a lodging house kept by a stranger to their employment, it could not be maintained that they were, while there, in the course of their employment. No more could it be contended that after their day's work and while absent from their employers' premises they would, during this absence, still be in the course of their employment.

The sleeping of the claimants in the barn is wholly dissimilar to the necessary but minor interruptions in the course of the day's work, or to the privileges accorded by the employers to the employee during a noon hour for his own benefit. These all occur during the progress of the work, not after its cessation. The injury to these claimants occurred seven hours and more after the day's work was ended, in a lodging which...

To continue reading