Cormican v. McMahon

• Decision Date: 03 April 1925
• Citation: 102 Conn. 234,128 A. 709
• Court: Connecticut Supreme Court
• Parties: CORMICAN v. MCMAHON.

128 A. 709

102 Conn. 234

CORMICAN v. MCMAHON.

Supreme Court of Errors of Connecticut.

April 3, 1925

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Proceedings under the Workmen's Compensation Act by James Cormican claimant, opposed by Margaret McMahon, defendant. From judgment of superior court affirming award of compensation to claimant by Compensation Commissioner, defendant appeals. Error, and case remanded with directions.

Cornelius J. Danaher, of Meriden, for appellant.

Ufa E Guthrie and John A. Markham, both of Hartford, for appellee.

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

WHEELER, C.J.

The defendant operated, as lessee, the Hotel Bronson in New Britain. The plaintiff was a guest in the hotel from some time in February, 1923, to about April 20, 1923, when, at the request of defendant, the plaintiff was invited to assume the duties of running the hotel, and he accepted this invitation and thereafter and until after the accident on June 4, 1923 performed various duties in connection with the operation of the hotel, from managing to dishwashing. No agreement was made as to plaintiff's wages. He in fact received his board and room. On June 4, 1923, while chasing a boy from the refrigerator in the hotel, plaintiff fell through an open doorway and sustained an injury which totally incapacitated him until some date in March, 1924.

On January 17, 1924, the plaintiff brought an action in the superior court in Hartford county against the New Britain Trust Company as operator of this hotel, and alleged in his complaint that he was at the time of his injury a guest in the hotel; this action is still pending. The wages customarily paid in New Britain at the time of the injury for the services such as plaintiff rendered was $15 per week in cash, and board and room worth $15. The predecessor of plaintiff received, as manager of this hotel, compensation at this rate. The trial court found that there was a contract of employment in force on June 4, 1923, between plaintiff and defendant, and fixed the average weekly wage of plaintiff at $30 per week. The defendant makes three principal claims: (1) That there was no contract of employment; (2) that the injuries did not arise out of and in the course of plaintiff's employment; and (3) that there was no basis for the award.

The finding that there was a contract of employment is a conclusion of fact drawn from the subordinate facts and reviewable by us. A finding should have been made as to the intention of the parties as to whether plaintiff should receive compensation. A finding as to intention is one of fact. Had such finding been made, it would have ended any question concerning the conclusion that such contract existed. The circumstance that defendant requested plaintiff to run this hotel, and the nature and extent of the duties required, make wholly improbable a conclusion that there was no expectation of compensation by plaintiff, or of payment of such by defendant. The conclusion that there was such a contract was properly drawn by the commissioner.

We also hold that there was a basis for an award in the facts found and that the award as made is supported by those facts. General Statutes, § 5351, as amended by chapter 306 Public Acts of 1920-21, § 6, provides that for total incapacity the injured employee shall be paid compensation equal to one-half of his average weekly earnings at the time of the injury. The average weekly earnings may be arrived at by determining what in fact they were, or what in fact th...