Biederzycki v. Farrel Foundry & Machine Co.

• Decision Date: 08 January 1926
• Citation: 103 Conn. 701,131 A. 739
• Parties: BIEDERZYCKI v. FARREL FOUNDRY & MACHINE CO. ET AL.
• Court: Connecticut Supreme Court

131 A. 739

103 Conn. 701

BIEDERZYCKI v. FARREL FOUNDRY & MACHINE CO. ET AL.

Supreme Court of Errors of Connecticut.

January 8, 1926

Case Reserved from Superior Court, New Haven County; George E Hinman, Judge.

Proceeding under the Workmen's Compensation Act by Cazmeri Biederzycki for the death of Chester Biederzycki, her husband, opposed by the Farrel Foundry & Machine Company employer, and another. From a finding and award of the compensation commissioner, defendants appeal to the superior court in New Haven county, by which it was reserved for advice of Supreme Court of Errors. Dismissal of appeal advised.

Chester Biederzycki had a contract of employment with the defendant the Farrel Foundry & Machine Company for a considerable period of time, and sustained an injury arising out of and in the course of that employment, for which the defendant company was adjudged, on June 19, 1923, to pay him an award. The injury so suffered was from a diseased condition of his heart, due in part to pre-existing disease, and in part to aggravation of pre-existing disease. On August 12, 1924 Biederzycki died at Ansonia, and the injury described in the original award was causally connected with, and a contributing factor to, his death. The claimant is the lawful wife of the deceased, living with and regularly receiving support from him in his lifetime. The commissioner adjudged that defendant company pay to the claimant wife compensation at the rate of $13.025 per week for not to exceed 312 weeks from and after the 12th day of August, 1924, and further adjudged that the award was made subject to any proper modification in the event of the death or remarriage of the claimant within the 6-year period covering the award.

Robert J. Woodruff and Avery Tompkins, both of New Haven, for plaintiff.

George E. Beers and Albert M. Herrmann, both of New Haven, for defendants.

Argued before WHEELER, C.J., and CURTIS, KEELER, MALTBIE, and HAINES, JJ.

WHEELER, C.J. (after stating the facts as above).

The various grounds of appeal resolve themselves into three. The first arises out of the denial of the defendants' motion that the finding embody: (1) The fact of the death of the defendant company's employee, Biederzycki, and the name residence, and age of his widow, and the names and ages of the minor children; (2) the date of the accident, the habits of the employee, and the period of time he worked after October 31, 1923, when the finding of June 19, 1923, recites he collapsed, and the physical condition of the employee at this time, or accord a hearing de novo upon these issues. Defendants' motion rests upon their claim that the case of the widow is separate and distinct from that of her husband, the employee of defendant, the Farrel Company, and therefore, they are entitled at their option to retry de novo in whole or in part the facts as found in the case of the employee. Defendants' purpose is to retry the issues of fact determined in the finding made in the case of the employee in order to prove that the conclusion there reached that deceased received a compensable injury was erroneous. The commissioner's power to modify or reopen an award is governed by General Statutes, § 5355, that any award or voluntary agreement for compensation under the Workmen's Compensation Act (Gen. St. 1918, § § 5339-5414), shall be subject to modification, upon the request of either party, " whenever it shall appear to the compensation commissioner that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence, on account of which the compensation is paid, has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court." Our construction of this statute in Hayden & Molstre v. Wallace & Sons, 100 Conn. 180, 123 A. 9, determines the point now raised by the defendants adversely to them. The defendant in that case moved to reopen the award for the reason that, although defendant had voluntarily agreed to pay compensation to the claimants, nevertheless they had discovered more than a year after making the agreement that the plaintiff was not an employee of the defendant, but was an employee of an independent contractor. Defendants ignore the effect of this decision, and read Jackson v. Berlin Construction Co., 93 Conn. 155, 105 A. 326, as holding that the claim of the deceased employee and the claim of his dependent are separate and distinct, and as a consequence the dependent must be required to prove her claim without reference to the facts found in an adjudication of the employee's claim. The opinion does not countenance this claim. It holds that the classes of compensation awarded the employee and his dependents are separate and independent of each other. But each arises out of the same compensable injury. If the employee is awarded compensation for an injury, and, in consequence of it, subsequently dies, the injury preceding the death and the death arose out of the one injury; compensation for the latter is payable to and belongs to the dependent, while the compensation awarded to the living employee is payable to and belongs to him. Upon the death of the employee within the two-year statutory period, the dependent is entitled to compensation under the statute. The facts found in the finding and award in favor of the employee must be accepted as facts finally found in the claim for compensation by the dependent on account of the death of the employee. All that the dependent must prove are: The employee's death; the dependence and the causal connection between the injury for which the employee...