Caraher v. Sears, Roebuck & Co.

• Decision Date: 09 June 1938
• Citation: 124 Conn. 409,200 A. 324
• Parties: CARAHER v. SEARS, ROEBUCK & CO.
• Court: Connecticut Supreme Court

200 A. 324

124 Conn. 409

CARAHER v. SEARS, ROEBUCK & CO.

Supreme Court of Errors of Connecticut.

June 9, 1938

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

Proceedings under the Workmen's Compensation Act by John J. Caraher Jr., claimant, opposed by Sears, Roebuck & Co., employer. From judgment of Superior Court which affirmed the award of compensation, defendant appeals.

No error.

Harry B. Dinerstein, Joseph G. Shapiro, Harry A. Goldstein and Charles Brody, all of Bridgeport, for appellant.

David Goldstein and George A. Saden, both of Bridgeport, for appellee.

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

BROWN Judge.

The vital questions upon this appeal are whether the plaintiff was an employee or an independent contractor, and if he was an employee whether he was guilty of serious and wilful misconduct barring his right to compensation. The finding with those corrections to which the defendant is entitled discloses these material facts upon those issues. The defendant is a self-insurer conducting a store in Bridge-port. It had engaged the plaintiff to install and repair radios, either in the service shop in its store or at the home of its customers. He did this work on the basis of $1 per job plus material in the Bridge-port area, and at $1 per hour and transportation, outside of the city limits. He did not punch a time clock. The defendant sold radios, all with a guaranty, and maintained a service department for the repair and servicing of them. On each call for service, the defendant entered the customer's name, address and complaint on a slip. Each day these slips were given to the plaintiff for proper action. No charge was made the customer for any service during the guaranty period; he merely signing the slip after the work was completed. After the expiration of the guaranty, the plaintiff made a proper charge, which either he collected and paid over to the defendant forthwith, or the defendant collected later. The plaintiff's name was not on the defendant's pay roll, but approximately once a week he rendered a statement of the work done and material purchased and was paid at the agreed rate therefor. Whenever the charge to the customer for service exceeded the amount paid the plaintiff for that job, the defendant retained the difference as its profit. The defendant directed the work to be done, and in a general way where it was to be done, by the directions on the service slips given to the plaintiff. If the customer requested that the repair be made at a certain time, the defendant also directed the time the work was to be done. It had the right to discharge him just as it had to discharge any employee if he did not do his work properly and to its satisfaction. The defendant had the general control of the work being done by the plaintiff.

During the evening of September 9th, 1936, the plaintiff after completing some repair work in the service shop on the top floor of the defendant's store, attempted to leave the store by an outside door at the rear, but found it locked. The defendant's service elevator has an opening into the store on one side and into its garage at the rear on the opposite side. The plaintiff thereupon opened the elevator door to cross the elevator and go through the garage. The elevator was not at the floor, and he fell to the bottom of the shaft, receiving severe injuries. Just before, his superior had suggested that he go out by another door and not through the elevator because it might not be there. The elevator door which the plaintiff opened was automatically controlled so that it would not open unless the elevator was within six inches of that floor. The fact that it did open when the elevator was not there indicated a defect in the mechanism which would not have been contemplated by the plaintiff when he opened the door. The plaintiff's attempt to use the elevator in disregard of his superior's suggestion is insufficient to warrant a finding that he acted intentionally and purposely, with knowledge and with a reckless disregard of consequences, constituting serious and wilful misconduct upon his part.

In our recent opinion in Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, at page 323, 195 A. 198, we quoted excerpts from several earlier decisions of this court explaining the distinction between an independent contractor and an employee. Three of these are reiterated as controlling upon the present question. ‘ An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.’ 2 Cooley, Torts (3rd Ed.) 1098; Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514. ‘ * * * the employee contracts to produce a given result, subject to the lawful orders and control of the employer in the means and methods used.’ Tortorici v. Moosop, Inc., 107 Conn. 143, 146, 139 A. 642, 643. ‘ The decisive test is: Who has the right to direct what shall be done and when and how it shall be done? Who has the right to the general control?’ Thompson v. Twiss, 90 Conn. 444, 447, 97 A. 328, 330, L.R.A.1916E, 506.

While the commissioner's finding is simply that the defendant ‘ had the general control of the work being done by the claimant,’ and not expressly that it had ‘ the right of general control,’ it is apparent that the latter is implicit in the former. Since it is likewise apparent that the record amply supports the commissioner's finding that the defendant had the general control, the court did not err in overruling the defendant's contention that the plaintiff was an independent contractor and not its employee. McAllister's Case, 229 Mass. 193, 195, 118 N.E. 326. Nor does the fact in evidence that the defendant permitted the plaintiff to diagnose the trouble with...