Bogoratt v. Pratt & Whitney Aircraft Co.

• Citation: 157 A. 860,114 Conn. 126
• Parties: BOGORATT v. PRATT & WHITNEY AIRCRAFT CO. et al.
• Decision Date: 12 January 1932
• Court: Supreme Court of Connecticut

157 A. 860

114 Conn. 126

BOGORATT v. PRATT & WHITNEY AIRCRAFT CO. et al.

Supreme Court of Errors of Connecticut.

January 12, 1932

Appeal from Superior Court, Hartford Frederick M. Peasley, Judge.

Action by David Bogoratt against the Prattey Whitney Aircraft Company and others to Cover damages for personal injuries alleged have been sustained by reason of negligence the defendants. The case was tried to the and verdict was directed and judgment rendered for the defendants, and plain appeals.

Error as to defendant named, and new trial leered as to It; no error as to the other deviants.

Jonah H. Peck and Louis Y. Gaberman, Ruth of Hartford, for appellant.

W Davis, of Hartford, for appellee turner Construction Co.

F Berry, of Hartford, and Julius G. of New Haven, for appellee Pratt & Whitney Aircraft Co.

Maxwell, of Hartford, for appelgston & Co.

Before MALTBIE, C. J and HINNKS, BANKS, and AVERY, JJ.

HINMAN, J.

During the years 1929 and 1930 there were in process of construction in East Hartford buildings comprising a manufacturing plant owned by the defendant pratt & Whitney Aircraft Company hereinafter referred to as the Aircraft Company. The complaint alleged that the defendant Turner Construction Company, hereinafter referred to as the Turner Company, was the general contractor for the erection of the plant, and that the defendant J. Livingston & Co., which we shall refer to as the Livingston Company, was contractor for the electrical work and equipment; that on January 16, 1930, the plaintiff was engaged in painting upon the exterior of the main building, and, while working on a scaffolding, came in contact with a wire carrying electricity of high voltage, which was strung through a window, the sash of which he was painting, at a point about sixteen feet from the ground, whereby he was thrown to the ground and injured. The plaintiff alleged and claimed that the defendants and each of them were negligent in maintaining the wires, in that they failed and neglected to post a sign on the north wall of the building giving notice of the high voltage which the wires carried and the danger therefrom: that the wires were not kept and maintained reasonably safely insulated and grounded: and in that they permitted the plaintiff to work around the building without warning him of the danger.

The Turner Company filed an answer admitting that it was general contractor, but denied any connection with the contract of the Livingston Company, and, as to the other material allegations, interposed denial or plea of no knowledge. It also pleaded, as special defense, that it sublet the work of painting to a subcontractor, Scully-McDonnell & Co., by whom the plaintiff was employed: that both It and the subcontractor were subject to the Compensation Act: and that the plaintiff made claim for and received compensation thereunder. The Aircraft Company filed a similar answer, and a special defense containing similar allegations; also that this defendant procured the work to be done by Scully-McDonnell & Go. through the Turner Company, and the work so procured to be done was a part or process in the trade or business of this defendant. The allegations of these special defenses, except that the work was part or process in the trade or business of the Aircraft Company and the allegation in each that because of the situation alleged the defendant was not liable to the plaintiff in an action for damages, were admitted by the plaintiff either In his replies or in the course of the trial. The defendant Livingston Company filed a general denial.

Upon the trial, the essential facts alleged in the complaint pertaining to the physical situation and the manner in which the plaintiff sustained his injury were substantially undisputed upon the evidence.

At the conclusion of the evidence, the trial court directed the jury to return verdicts for the Aircraft Company and the Turner Company on the ground that it appeared that each of them. was protected by the Workmen's Compensation Law from liability in this action for negligence, and in favor of the defendant Livingston Company on the ground that the failure on its part to put up warning signs under the circumstances did not constitute negligence, hut if it did, the work having been turned over to the Aircraft Company and being at the time of the accident ł under its control, the Livingston Company as a matter of law would not be liable. The appeal questions the justification of the trial court in so directing the verdicts.

The first question, concisely put, is whether the Aircraft Company or the Turner Company, or both, are answerable to an employee of a subcontractor of the latter in a common law action for damages arising out of and !m the course of his employment, and alleged to have been caused by negligence. Solution of this problem involves the construction and application of relevant provisions of our Compensation Act which are appended in a footnote. ^[*]

The provisions of section 5226 ma e It entirely clear that as between all " persons in the mutual relation of employer arid employee" the right to abtain and the liability to pay compensation under the act. is substituted for the common-law rights and liabilities otherwise existing between them. to the excitision of the latter. Wells v. Radville. 112 Conn. 459. 463, 153 A. 154. Our decisions leave no doubt as to our conception of the meaning, scope, and effect of section 5230 as to liability to pay compensation. " This section passed in 1913 is made a part of part B of the Compensation Act to strengthen its remedial purpose. It in effect provides an addition to the definition of employer and employee found in the original act. Under it a principal employer in an undertaking becomes, in reference to the Compensation Act, the employer of all the employees on the work who come within the terms of the section. When a principal employer (contractor) undertakes a piece of work in this state and voluntarily accepts part B of the Compensation Act. he makes the act, including section 5345 [now section 5230], a part of his undertaking, and his employees in relation to the Compensation Act, include those who come within the terms of this section. Douthwright v. Champion, 91 Conn. 524, 100 A. 97, Ann.Cas. 1917K, 512. y(3)5C The defendants claim that under section 5345 no liability can arise against either as a principal employer, unless the plaintiff has exhausted his remedy against his immediate employer and his insurer, if any. The terms of the section do not countenance such a limitation upon its nose; whenever an injured employee of a subcontractor receives a compensable injury he may pursue his remedy against his immediate employer or any one or more principal employers as defined below or against all In one proceeding. Where there is an original contractor and a consecutive chain of subcontractors down to the workman receiving a compensable injury, each contractor in such chain and his immediate employer is a principal employ her as to the injured workman under section 5345." Palumbo v. George A. Fuller Co., 99 Conn. 353, 358, 122 A. 63, 65. In Pascoal v. Mortenson, 109 Conn. 3.9, 44, 145 A. 149, 151, after adverting to the Palumbo Case. we held it " too clear for further discussion" that an award under this act can make no distinction between principal employers, within the definition of section 5230, and subcontractors. Johnson v. Mortenson, 110 Conn. 221, 147 A. 705, 66 A.L.R. 1428, did not concern rise:bats and obligations obtaining between the employee on the one hand and the general contractor and the subcontractor on the other, which had been settled in Pascoal v. Mortenaon, tat the farther question, which had bean held it to be within the former appeal, as to the rights and liabilities to the contractor and the subcontractor as between themselves It was again observed (page 225 of 110 Conn. 147 A. 705) that the section (section 5345 which is now section 5230 recognize no distinction between principal contractor and subcontractor as to liability to a claimant for but holds both primarily liable to him. It does a tear from the opinion., Sow ever, that tile addition to or expansion of this definition of employer and employee as found in the original act, mentioned in the Palumbo Case (page 35S of 99 Conn. 122 A. 63) a having been worked by the adoption of this; is confined to the subject-matter to and does not extend to all the (other provisions of the act. See, also, White T. George A. Fuller Co., 226 Mass. 1, 4, 114 N.E. 829.

The further question is now presenter Whether, notwithstanding that, the principle employer, contractor and subcontractor are primary and equally liable to the claim man compensation provide the act. the latter by virtue of the provision of section 5231 quoted in the footnote, or otherwise bring a common action in tort against such principal or contractor or both. We cannot assent to the suggestion of the appellant that Duffy T. J. W. Bishop Co. of 9 Conn. 573, 122 A. 121. is decisive of this Inquiry or significant as to the result to be each. The record of that case disclose; That the only special defense interposed was used on a provision in the contract between he defendant contractor and the subcontractor, who was bright in as a plaintiff section relevant provisions of the statute section 5231, that the subcontractor should be solely answerable for damages to all per Our in any way arising out of or in that of the work under the subcontract Issue was raised as to the right of the plaintiff to maintain his to action against lie defendant; the latter, the appellant no mention thereof in his brief, he opinion (page 578 of 99 Conn., 122 A. 121: features it clear that the matter was not considered. The...