Darling v. Burrone Bros., Inc.

Citation292 A.2d 912,162 Conn. 187
CourtSupreme Court of Connecticut
Decision Date19 January 1972
PartiesFrederick DARLING v. BURRONE BROTHERS, INC., et al.

Charles G. Albom, New Haven, with whom were Robert J. Gillooly, and John R. McGrail, New Haven, for appellants (defendants).

Nathan Goldberg and John E. McNerney, New Haven, for appellee (plaintiff).


LOISELLE, Justice.

The plaintiff, Frederick Darling, was injured when the ditch in which he was working caved in on him. He brought this action to recover damages for his personal injuries. The jury returned a verdict for the plaintiff and from the judgment rendered thereon the defendants have appealed.

The plaintiff's claims of proof include the following: Anderson-Wilcox, Inc., a builder and land developer, by its president, John Wilcox, hired the defendant Burrone Brothers, Inc., as independent contractors, to excavate a ditch to accommodate a storm sewer. There were three steps in the procedure used in digging the ditch: The defendant Joseph Burrone, an employee of the defendant Burrone Brothers, Inc., would dig with a machine called a backhoe; the plaintiff and Charles Mansolf, a coworker, both employees of Anderson-Wilcox Inc., would smooth the bottom of the ditch with a shovel, guide a section of sewer pipe into place and pack earth around it to keep it from moving laterally; a Burrone Brothers, Inc., employee, the defendant Stephen Kopylec, would then backfill the trench, i.e., push the excavated earth back into the ditch with a bulldozer. The plaintiff was required to be in the ditch throughout the operation. During the backfilling, he would use a shovel to deflect rocks from falling into the sewer pipe.

A one-inch water pipe, or lateral, crossed the path of the ditch, running perpendicular to it. Joseph Burrone told the plaintiff to backfill around the lateral. Having done so, the plaintiff remained in the ditch, standing on the sewer pipe, and watched the backhoe operation. While the plaintiff was in this position, the bulldozer and backhoe were operating and causing vibrations, as did a nearby railroad. The earth which Joseph Burrone dug contained bony gravel and was unstable. Joseph Burrone made no inspection to determine its character; nor did he slope, brace, or shore the walls of the ditch to prevent their caving in or warn the plaintiff to get out of the ditch. These conditions made the ditch an unsafe place in which to work and caused a section of the ditch wall, about fourteen feet in length and about five feet in width, to cave in on the plaintiff, burying him to his waist. John Wilcox, the plaintiff's employer, was at the job site occasionally, but only to see that the work conformed to specifications.

The defendants have assigned as error the refusal of the court to include in the plaintiff's claims of proof six paragraphs which they claim the plaintiff offered as evidence and claimed to have proved. A party to an action may not force into the claims of proof of his adversary factual matters on which the latter does not rely. Franks v. Lockwood, 146 Conn. 273, 276, 150 A.2d 215; Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664. The defendants have also assigned error in the court's refusal to include several of their claims of proof in the finding. 'Where a party seeks additions to his own claims of proof in a case tried to the jury, the additions should be made if they are material and are supported by the evidence.' Phoenix Mutual Life Ins. Co. v. Brenckman, 148 Conn. 391, 394, 171 A.2d 194, 195; Castaldo v. D'Eramo, supra. The finding is, accordingly, corrected by adding to it facts from the defendants' draft finding that are supported by the appendix to their brief.

The defendants' claims of proof include the following: Anderson-Wilcox, Inc., engaged Burrone Brothers, Inc., as a subcontractor to excavate a ditch for storm sewers, at an hourly rate for its machines and two of its men. Both the machines and the men were subject to the orders of John Wilcox, who had charge of the job, was continuously present at the job site, gave orders periodically and was the plaintiff's immediate supervisor. No Burrone Brothers, Inc., employee was authorized to give orders to the plaintiff or Mansolf, who were both under the orders only of John Wilcox. Wilcox directed Joseph Burrone where to dig and at what angle and marked the location of the lateral so that Joseph Burrone would not dig it out with his backhoe. John Wilcox deemed it his function to see to it that Joseph Burrone worked in a safe manner insofar as Anderson-Wilcox, Inc., employees were concerned. John Wilcox would also check the sewer pipe to see if it was laid at the proper angle. The plaintiff was not required to be in the ditch except to level the bottom, Guide the pipe into place, and pack earth around it to prevent it from moving laterally. John Wilcox and Joseph Burrone had warned the plaintiff several times to stay out of the ditch. Usually, workmen would claimb out of the ditch before it was backfilled. To keep the ditch from caving in, Joseph Burrone sloped its sides in such a way that it was three feet wide at the bottom and eight feet wide at the top. His inspection of the soil, in which he had already ready dug ninety feet, revealed it to be firm and stable.

Joseph Burrone had no responsibility for the work at the water lateral. Because the backhoe could not remove earth around the lateral without pulling out the lateral, excavating and backfilling around it had to be done by hand shovel by the plaintiff or Mansolf. Sloping near the lateral also had to be done in this fashion. The plaintiff backfilled the ditch by hand shovel in the area of the lateral. After backfilling the lateral, he stood in the ditch for more than ten minutes. While the plaintiff was standing there, two or three feet from the lateral, a slide-in occurred, at which time the backhoe was thirty to thirty-five feet bulldozer was thirty to thirty-five feet away. The slide-in came from the earth which the plaintiff had just backfilled around the lateral.

The defendants attack forty-four paragraphs in the plaintiff's offers of proof in the finding as being unsupported by the evidence. An examination of the appendices adequately supports forty-one paragraphs so attacked by the defendants. One paragraph attacked is of no significance and need not be considered. The finding is corrected as to the two remaining claims: The evidence printed in the appendices supports a finding that a 'couple' of feet of gravel were removed above the lateral rather than a few feet and the finding is so corrected; the paragraph in the finding stating '(a)ccording to defendant Joseph Burrone, the accident occurred because of the operation of the bulldozer' is deleted.

The defendants assign as error the court's instruction that as a matter of law the defendants were in charge of the excavation of the ditch and thus in control, without putting the issue of control to the jury for their determination. Where the evidence in such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court but, if honest and reasonable persons could fairly reach different conclusions on the question, then the issue should properly go to the jury for their determination. Trainor v. Frank Mercede & Sons, Inc., 152 Conn. 364, 369, 207 A.2d 54; Johnson v. Pulidy, 116 Conn. 443, 445, 165 A. 355.

The defendants claim that Burrone Brothers, Inc., received compensation on an hourly basis for its two men and equipment; that John Wilcox told Joseph Burrone where to dig and how deep to dig; that Wilcox located the lateral; that the plaintiff and Mansolf were employees of Anderson-Wilcox, Inc.; that John Wilcox told his employees to excavate and slope at the site of the lateral and also make the bottom of the ditch ready for the sewer pipe; that, therefore, control of the location was in Anderson-Wilcox, Inc., and not in the defendants.

The manner of remuneration, whether in wages, salary, commission, by piece or job, is not decisive or controlling in determining whether one is an employee or an independent contractor exercising control over the manner of his own work. Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122; Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 414, 200 A. 324; Bourget v. Overhead Door Co., 121 Conn. 127, 131, 183 A. 381; Aisenberg v. C. F. Adams Co., 95 Conn. 419, 423, 111 A. 591.

The fact that John Wilcox was present at the job site, indicated to Joseph Burrone where to dig the ditch and how deep to dig it, periodically checked to make sure the depth was accurate and marked the area establishing the location of the lateral by sticks imbedded in the ground signifies no more than the furnishing of specifications for the job. It does not demonstrate control of the manner and means of accomplishing the digging. It is apparent that John Wilcox did no more than exercise his right to supervise the general result and also the immediate results, from time to time, as the work progressed. Pribulo v. Chiarelli, 114 Conn. 32, 35, 157 A. 420; Welz v. Manzillo, 113 Conn. 674, 680, 155 A. 841; 41 Am.Jur.2d, Independent Contractors, § 10. The information furnished was necessary to enable the defendant to dig the ditch to the proper depth, locate it properly and avert damage to the existing lateral. Tortorici v. Sharp Moosop, Inc., 107 Conn. 143, 147, 139 A. 642. That the plaintiff and Mansolf were employees of Anderson-Wilcox, Inc., worked in the ditch and assisted the defendant is not material. The claims of proof by both parties clearly show that the employees had no right to interfere with the means or manner of digging the ditch. Where an employee has no authority to interfere with the manner of operation, he has no effect on the determination of the one in control. ...

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