Aisenberg v. C.F. Adams Co., Inc.

• Decision Date: 10 November 1920
• Court: Connecticut Supreme Court
• Parties: AISENBERG v. C. F. ADAMS CO., Inc., et al.

111 A. 591

95 Conn. 419

AISENBERG v. C. F. ADAMS CO., Inc., et al.

Supreme Court of Errors of Connecticut.

November 10, 1920

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Proceeding by Bertha Aisenberg under the Workmen's Compensation Act to obtain compensation for the death of an employee, opposed by the C. F. Adams Company, Incorporated, and others. There was an award of compensation, which was affirmed by the superior court, and the employer appeals. No error.

Richard H. Deming, of Hartford, for appellant.

Bernard F. Gaffney, of New Britain, for appellee.

WHEELER, C.J.

The principal assignment of error is the conclusion of the commissioner that upon the facts found the deceased was an employee of the Adams Company within the meaning of that term as used in our Compensation Act (General Statute, § 5388, as amended by chapter 142, § 18 of the Public Acts of 1919). Our act provides that-

" Employee shall mean any person who has entered into or works under any contract of service or apprenticeship with an employer."

So that compensation can be awarded in this case, provided the deceased had entered into or was working under any contract of service with the Adams Company when he received his injuries.

The burden of sustaining the proof of this is upon the plaintiff-claimant. And we agree with the respondents that the question, whether the deceased was an employee when he met his injuries is a conclusion to be drawn from the facts found, and that the conclusion of the trial court that the deceased was an employee is not controlling, but is reviewable.

The defendants read the finding as leading to the conclusion that the relationship between the deceased and the Adams Company was that of an independent contractor, and not that of an employee. The determination of this relationship in the light of the finding settles, adversely to the defendants' contention, the ground of appeal that the injuries did not arise " out of and in the course of the employment."

Our recent cases (Kinsman v. Hartford Courant Co., 108 A. 562,Thompson v. Twiss, 90 Conn. 444, 447, 97 A. 328, L.R.A. 1916E, 506, and Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 85 A. 514) make definite and clear the tests of our law as to whether in a given case the relation be that of employment or that of independent contractor. The true test we hold is, Had the employer the " right to direct what shall be done and when and how it shall be done, the right to the general control?"

The independent contractor contracts to produce a given result by methods under his own control. The employee contracts to produce a given result, subject to the lawful orders and control of his employer in the means and methods used in that employment. He is bound in some degree to the duty of service to the employer. Wood on Master and Servant, 317.

The Adams Company was engaged in selling goods in Connecticut on the installment plan, through salesmen whom it selected and whom it had the right to discharge. It employed the deceased as one of the salesmen of its goods. We can ascertain whether the deceased was an independent contractor or an employee by applying our test and finding whether the deceased in the means and methods used in the sale of these goods was subject to the orders and control of this company. The goods were sold on lease by the deceased, and remained the goods of the company until paid for. They came into the possession of the deceased on bailment. The company made the terms of all sales, and this we regard as a very important feature of control. It furnished the blanks for leases accountings, and reports, and these were used by the deceased. It provided the horse used by...