Bown v. Waterbury Battery Co.

• Decision Date: 08 May 1942
• Citation: 26 A.2d 467,129 Conn. 44
• Court: Connecticut Supreme Court
• Parties: BOWN v. WATERBURY BATTERY CO. et al.

26 A.2d 467

129 Conn. 44

BOWN

v. WATERBURY BATTERY CO. et al.

Supreme Court of Errors of Connecticut.

May 8, 1942.

Appeal from Superior Court, New Haven County; John A. Cornell, Judge.

Proceedings under the Workmen's Compensation Act by Elizabeth Bown, claimant, against Waterbury Battery Company and others. From a finding and award of the compensation commissioner in favor of the plaintiff, defendant appealed to the superior court and case was reserved by the court for the advice of the Supreme Court of Errors.

Decree in accordance with opinion. Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

James M. Lynch and Harry Krasow, both of Waterbury, for plaintiff.

Arthur B. O'Keefe, of New Haven, for defendants.

BROWN, Judge.

The Waterbury Battery Company, hereinafter called the defendant, is engaged in the business of manufacturing batteries in Waterbury, and prior to a fire in February, 1941, manufactured primary batteries at its place of business on South Main Street, and storage batteries at its other place of business on Mill Street. As a result of the fire at the former plant, it became necessary to remove some of the operations in connection with the manufacture of primary batteries to the Mill Street plant. This required the erection of a partition to divide the single room there available, to prevent the damage by fumes and dirt to the materials used in making the primary batteries which would result if the storage batteries were manufactured in the same room. The defendant awarded the job of repairing the burned roof of the South Main Street plant to Walter J. Martin, who was owner of a roofing business and had in his employ George Bown, a roofer by trade. The defendant also engaged Martin to erect of light unsubstantial material known as celloglass the needed partition at its Mill Street plant extending the entire length of the fifty foot room and from floor to ceiling, a height of twelve feet. On February 17, 1941, Bown as Martin's employee, while engaged in the erection of this partition, was working on a platform about six feet high when a plank gave way, precipitating him to the floor and causing injuries which resulted in his death on February 26, 1941. The plaintiff is his widow and sole dependent. The agreement between the defendant and Martin was that he was to do the work on the basis of the cost of labor and material furnished by him plus 10 per cent. In fact, most of the material was provided by the defendant. In addition to these facts, which are not disputed, the commissioner found that the erection of the partition to enable the defendant to continue the manufacture of both types of batteries without interruption "was an essential and necessary condition in the operation and continuance of its trade or business." He further found the defendant liable as Bown's employer under § 5230 of the General Statutes and awarded compensation to the plaintiff for his death. Upon the defendant's appeal from this award the Superior Court reserved the case for the opinion of this court.

The question for determination is whether the defendant was liable as a principal employer within the meaning of § 5230, which is printed below.¹ To render him liable under its provisions "(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; and (3) the work must be a part or process in the trade or business of the principal employer. Crane v. Peach Brothers, 106 Conn. 110, 113, 137 A. 15; Fox v. Fafnir Bearing Co., 107 Conn. 189, 191, 139 A. 778, 58 A.L.R. 861; Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 136, 157 A. 860; Massolini v. Driscoll, 114 Conn. 546, 551, 159 A. 480; Hoard v. Sears Roehuck & Co., Inc., 122 Conn. 185, 188, 188 A. 269." Buytkus v. Second National Bank, 127 Conn. 316, 319, 16 A.2d 579, 580. It is conceded that conditions (1) and (2) were fully met so that the determinative question upon this reservation is whether the work of erecting the partition was "a part or process in the trade or business" of the defendant. The plaintiff contends that the commissioner having expressly found as a fact that its erection "was an essential and necessary condition in the operation * * * of its [the defendant's] trade or business" and none of the evidence being printed in the record, this finding is not subject to correction and is conclusive that the deceased was an employee of the defendant under § 5230. This is not a finding of a subordinate fact, however, but is a conclusion of fact. Accordingly, even though as worded it were sufficient to establish condition (3) above, it cannot stand unless the subordinate facts found reasonably and logically support it. Conn.App.Proc, § 96; Hackett v. New Haven, 103 Conn. 157, 164, 130 A. 121; City Bank & Trust Co. v. Ruthinian Greek Catholic Church of St. Michael, Inc., 102 Conn. 609, 611,129 A. 785; Nolan v. New York, N. H. & H. R. Co., 70 Conn. 159, 174, 39 A. 115, 43 L.R.A. 305. The vital question therefore remains for determination upon the facts above recited.

The plaintiff relies upon four decisions by this court as supporting her contention that the erection of the partition was a part or process in the trade or business of the defendant. Of these the two cases more closely analogous to the one before us, in so far as the nature of the work performed by the plaintiff when injured is concerned, are Carlson v. Miller, 118 Conn. 367, 172 A. 872, and Levecque v. Dupuis, 119 Conn. 224, 175 A. 782. In the former the plaintiff was injured by a saw which he was using to cut lumber in erecting a stand for the display of goods in the market of the defendant where he was employed; and in the latter the plaintiff was injured by the breaking of a ladder which he was using in repairing the roof of the defendant church by which he was employed. While the plaintiff was held entitled to compensation in each of these cases, neither is authority which can sustain the plaintiff's claim here. The plaintiff in both was the defendant's own employee, there being no independent contractor, so that each case turned not on the construction of § 5230 but on that part of § 5223 which denies compensation to a casual employee unless he is injured while employed "for the purposes of the employer's trade or business." The difference between the language of this provision and that of the clause "a part or...