Bourget v. Overhead Door Co.

• Decision Date: 13 February 1936
• Citation: 183 A. 381,121 Conn. 127
• Court: Connecticut Supreme Court
• Parties: BOURGET v. OVERHEAD DOOR CO. et al.

183 A. 381

121 Conn. 127

BOURGET v. OVERHEAD DOOR CO. et al.

Supreme Court of Errors of Connecticut.

February 13, 1936

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Proceeding under the Workmen's Compensation Act by William J Bourget, claimant, against the Overhead Door Company employer, and others. From a finding and award of the Compensation Commissioner for the Third District in favor of defendants dismissing the plaintiff's claim for compensation, plaintiff appealed to the Superior Court, and the case was tried to the court, and from a judgment affirming the award and dismissing the appeal, the plaintiff appeals.

Error and case remanded, with direction.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

Morris W. Mendlesohn, of New Haven, for appellant.

Harrison D. Schofield, of Hartford, for appellees.

BROWN, Judge.

The fundamental question upon this appeal is whether the plaintiff was an employee or an independent contractor. The finding, corrected in so far as warranted, pursuant to the claims made in the plaintiff's brief, exclusive of those hereinafter discussed, discloses the following situation as to this issue: For some six years prior to December 13, 1934 the defendant Overhead Door Company of New York, Inc., hereinafter referred to as the defendant, had been engaged in the business of selling and installing garage doors of the type that rolls or folds upward upon opening. The plaintiff is a carpenter by trade, and during this period installed doors for the defendant, and neither worked for nor was paid by any one else. At first he was paid wages at the rate of $35 per week, and later was made foreman at higher pay. Until something over two years ago, the defendant hired a local trucker to deliver the doors sold to the places where they were to be installed for its customers. The defendant at no time itself owned any trucks.

In consequence of a talk with the defendant's manager in New Haven, the plaintiff bought a truck to take care of such deliveries where the doors were to be installed by him, and so to earn extra money by reason of the sums which the defendant paid him for such trucking. Its manager had the defendant's name painted on the plaintiff's truck, but neither his own name nor his telephone number appeared thereon. Pursuant to the arrangement made, the defendant, in addition to paying him cash for trucking the doors he installed, also paid for the gasoline and oil used in connection therewith. The plaintiff paid for all truck maintenance, repairs, and replacements. From the date of this new arrangement until his injury on December 13, 1934, the plaintiff was no longer compensated for his work in installing the doors by a weekly wage paid by the defendant, but, instead, by payment at an agreed rate per door, irrespective of where the installation was made. Under it, the plaintiff was at liberty to work for other employers when not busy with the defendant's work, but in fact did no such work for others. The defendant also maintained a telephone in the plaintiff's name at his residence for convenience in communicating with him. When it had doors for him to install it was the custom for its office to call him, and in the event of any complaint to it by the customer after installation, to call him, whereupon he would service the door in question. The defendant arranged for the installation of practically all the doors it sold. When the plaintiff needed assistance, either in trucking on installing the door handled by him, he hired, at his own expense, such helpers as he saw fit.

On December 13, 1934, at the Starin Line Dock in New Haven, while the plaintiff, with the assistance of such a helper, was loading a door owned by the defendant into his truck, he sustained a compressed fracture of the twelfth dorsal vertebra, resulting in several months' disability for laborious work. Before this accident, the defendant's manager had notified the plaintiff that in the event he was injured he was to go to a doctor and the company's insurance would take care of it. Later on the day of the accident, the plaintiff reported it to the defendant's manager, pursuant to whose instructions he consulted a doctor in New Haven the same evening.

The facts stated in two paragraphs of the plaintiff's motion to correct the finding, which he claims were admitted and undisputed facts, are material, and, if added to the finding would preclude the conclusion reached by the commissioner upon the present finding. One paragraph sets forth that the defendant had the right to tell the plaintiff how, when, and where to install the doors, and the other that the plaintiff was on the pay roll of the defendant, which could discharge him if it so desired. The record discloses that the plaintiff testified that the defendant or its manager had the right to tell him how, when, and where to install the doors; that he was under the control of the manager of the defendant, taking orders from him, and was subject to such orders; that, in other words, the work he did, and the manner in which he did it, were subject to orders from the defendant telling him where to go and what to do. He also testified that ...