Battistelli v. Connohio, Inc.

CourtSupreme Court of Connecticut
Citation88 A.2d 372,138 Conn. 646
Decision Date15 April 1952
PartiesBATTISTELLI v. CONNOHIO, Inc. et al. Supreme Court of Errors of Connecticut

Clarence A. Hadden, New Haven, William L. Hadden, New Haven, for appellants.

Aram H. Tellalian, Jr., Bridgeport, Robert S. Tellalian, Bridgeport, for appellee.



The principal question in this case may be stated as follows: Can the plaintiff recover damages at common law for an injury caused by the negligence of the defendants or is he limited to an award under the workmen's compensation law on the theory that the defendants were his principal employers? The case was tried to the jury and the plaintiff had a verdict. The defendants appealed from the denial of their motion to set aside the verdict and from the judgment.

The jury reasonably could have found the following facts: The defendants were engaged in manufacturing ice, including crushed ice. Their ice-crushing machine was powered by an electric motor. The wires were in a conduit. About May 1, 1948, a short circuit developed in the wires near the motor. The defendants' employees temporarily repaired the defect by running wires around the defective section. On May 21, the defendants contracted with George J. Steinhardt, Inc., to have the wires in the conduit replaced. The Steinhardt company was the employer of at least twenty-four electricians, including the plaintiff. He was sent to the defendants' plant to do the job. This consisted of shutting down the machine, disconnecting the temporary wiring, pulling out the defective wiring disassembling and reassembling the conduit, inserting the new feed, ascertaining the direction of the motors and doing a three-phase rewiring job. The work was dangerous and required the services of a skilled electrician. The job was started at 11 a. m. and completed at 4 p. m. except for the replacing of a cover on a fitting. While attaching the latter the plaintiff was injured by a traveling crane operated by an employee of the defendants. The negligence of the defendants and the due care of the plaintiff were not in dispute.

The defendants claim that General Statutes, § 7423, 1 applies. 'The special purpose of [§ 7423] is to protect employees of minor contractors against the possible irresponsibility of their immediate employers by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.' Bello v. Notkins, 101 Conn. 34, 38, 124 A. 831, 832. The statute contains three conditions: (1) the relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; (3) the work must be a part or process in the trade or business of the principal employer. Bown v. Waterbury Battery Co., 129 Conn. 44, 46, 26 A.2d 467, 150 A.L.R. 1210. The facts show that the first two conditions were met. The question arises on the third.

As is stated in a very recent comparable case, Grenier v. Grenier, 138 Conn. 569, 87 A.2d 148, which refers to most of our cases, the question is one of degree and fact. The test there applied is valid in the case at bar: If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer's own employees in the prosecution of his business, or as an essential part in the maintenance thereof, it is a part or process of his work. When this test is applied, it is obvious that the intricate character of the job and the special skill required put it well outside of the capabilities of the defendants' ordinary employees. The jury reasonably could have concluded that the work was not a part or process in the trade or business of the defendants. There was no error in the denial of the motion to set aside the verdict.

The finding cannot be corrected in any way which will advantage the defendants. The statement of facts, about which there was no serious dispute, sufficiently describes the offers of proof of the parties.

In their appeal from the judgment, the defendants first claim that the court should not have submitted the issue under § 7423 to the jury. Under the somewhat peculiar facts in the case at bar, it is unnecessary to decide this claim. It cannot avail the defendants since they requested in writing that the issue be submitted to the jury. It is true that the defendants also asked for what amounted to a directed verdict, but the two requests were not in the alternative. Action induced by an appellant cannot be made a ground of error. Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546; Ratti v. P. Berry & Sons, Inc., 98 Conn. 522, 524, 119 A. 894; Andrews v. Dougherty, 96 Conn. 40, 46, 112 A. 700; Stevens v. Kelly, 66 Conn. 570, 577, 34 A. 502; Maltbie, Conn.App.Proc., § 21(b).

The defendants' claim that, as a matter of law, the injury of the plaintiff was incurred while he was engaged in work which was a part or process of their business is disposed of by the discussion of the decision on the motion to set aside the verdict. The other exceptions to the charge are too technical to deserve extended consideration. As noted above and by the trial court in its memorandum, the question on 'a part or process' has been defined as one of degree and fact. In its charge, the court gave the jury a number of illustrations, taken from our cases, to assist them in reaching a decision. They were told that 'no one of these factors or tests mentioned by itself exclusively is necessarily determinative of this question, but you should consider the whole evidence, as I have said, and apply it to the law as I have given it to you as pertaining to this issue and thus decide it.' Read as a whole, the charge was 'correct in law, adapted to the issues and sufficient for the guidance of the jury.' Maltbie, Conn.App.Proc., § 48; New London Water Commissioners v. Robbins, 82 Conn. 623, 636, 74 A. 938. The defendants take nothing by their appeal from the judgment.

There is no error.

In this opinion BROWN, C. J., and BALDWIN and O'SULLIVAN, JJ., concurred.


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