Fox v. Fafnir Bearing Co.

• Decision Date: 06 January 1928
• Citation: 139 A. 778,107 Conn. 189
• Court: Connecticut Supreme Court
• Parties: FOX v. FAFNIR BEARING CO. ET AL.

139 A. 778

107 Conn. 189

FOX v. FAFNIR BEARING CO. ET AL.

Supreme Court of Errors of Connecticut.

January 6, 1928

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Proceeding under the Workmen's Compensation Act by Richard Fox claimant, opposed by the Fafnir Bearing Company and another. An order of the compensation commissioner for the First district granting an award was confirmed by the superior court, and appeal dismissed, and defendants appeal. No error.

S. Polk Waskowitz and Edward S. Pomeranz, both of Hartford, for appellants.

William M. Greenstein, of New Britain, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

The assignments of error for refusal to correct the finding do not call for extended consideration. In so far as the defendants' motion stated material and operative facts, they were inserted by the commissioner. His legal conclusions, which were also inserted, had no proper place in the finding, and cannot affect our decision. The paragraph as to an advertising asset, claimed to have been found without evidence, was, on the contrary, supported by the testimony of the foreman of the defendant employer. The last paragraph of the finding, to which the defendants object, is not a statement of an operative fact, and has no bearing on our discussion of the case. These assignments of error are not sustained.

The essential facts are simple. The plaintiff was an employee of one McGrath. The latter was in the window cleaning business, and entered into a contract with the Fafnir Bearing Company to clean the windows of its factory at a certain price per window. McGrath at all times had less than five employees, and was not subject to the provisions of the Workmen's Compensation Act (Gen. St. 1918, § § 5339-5414). The plaintiff's regular occupation was that of a lineman, but he had not followed that employment for some time before the injury. He worked for McGrath October 7th and 8th, and the morning of the 9th, which was Saturday. October 11th and 12th he worked for a truckman, and on October 13th again went to work for McGrath. He did not intend to work as a window washer regularly. While so employed in washing a window in one of the factory buildings of the defendant employer, he attempted to raise the window, which had stuck, and in so doing lost his balance, and was obliged to jump to the ground below, sustaining a fractured leg in consequence. The defendant employer is engaged in the business of manufacturing ball bearings. Its building is lighted by an artificial lighting system, but windows are necessary for ventilating purposes, and that natural daylight and sunlight may enter the building. the window in question was in a room in which were stored ball bearings. The defendant employer is a relatively new corporation, and it was necessary to have the windows washed, as a clean and attractive condition of the factory was an advertising asset of the corporation.

It is the claim of the defendants that the relationship of employer and employee within the meaning of the Compensation Act did not exist between the plaintiff and the Fafnir Bearing Company, because (1) the plaintiff was an employee of McGrath, who was an independent contractor, and (2) his employment was casual in its nature. The provision of the act relevant to the first claim reads as follows:

" When any principal employer procures any work to be done, wholly or in part for him, by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, then such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor." General Statutes, § 5345.

This statute requires the concurrence of three conditions, viz.: (1) That the relation of principal employer and contractor must exist in work wholly or in part for the former; (2) that the work must be in, on, or about premises controlled by the principal employer; and (3) that the work 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.

It is conceded that the facts in the present case bring it within the first two of these requirements, but the defendants contend that the washing of windows by the plaintiff was not " a part or process in the trade or business of the principal employer."

In its definition of " employee" the act provides that the term shall not be construed to include " one whose employment is of a casual nature, and who is employed otherwise than for the purpose of the employer's trade or business." General Statutes, § 5388. It is conceded that the plaintiff's employment was of a casual nature, but the defendants make the same contention here that in washing windows plaintiff was employed otherwise than for the purpose of the employer's trade or business.

Thus a single question is presented upon this appeal, Was the washing of the windows of the defendant employer's factory a part or process in its trade or business? If it was, it was liable under section 5345 to pay compensation to the same extent as if the work were done without the intervention of the contractor, McGrath, and the plaintiff would clearly be an employee within the definition of section 5388, since, if he was doing work which was a part of the employer's business, it could not be said that he was employed otherwise than for the purposes of such business.

In Bello v. Notkins, 101 Conn. 34, page 38, 124 A. 831, 832, we said:

" The special purpose of section 5345 is to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on."

It in effect extends the definition of employer and employee found in the original act. Palumbo v. Fuller Co., 99 Conn. 353, 122 A. 63. In the Palumbo Case we held that compensation could be recovered from the principal employer when the latter was a building and construction concern, and had contracted with an engineering company for the excavation work on a certain job, and an employee of the latter was injured while loading a truck in removing loam from the cellar. It is clear enough that this was work which was actually a part or process of the work of a building and construction company. It was work which it was required to do as a part of its business, and which it chose to do by contract rather than by its own men hired for that purpose. On the other hand, we have held in construing section 5388 that a domestic servant was employed otherwise than for the purposes of the employer's trade or business, which was that of conducting a meat market. Pallanck v. Donovan, 105 Conn. 591, 594, 136 A. 471.

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