France v. Munson

• Citation: 192 A. 706,123 Conn. 102
• Court: Connecticut Supreme Court
• Decision Date: 02 June 1937
• Parties: FRANCE v. MUNSON.

192 A. 706

123 Conn. 102

FRANCE v. MUNSON.

Supreme Court of Errors of Connecticut.

June 2, 1937

Appeal from Superior Court, New Haven County; John A. Cornell and Frank P. McEvoy, Judges.

Proceeding for compensation under the Workmen's Compensation Act by George A. France, employee, opposed by William D. Munson employer. Claimant was awarded compensation by a compensation commissioner, and from the latter's order, denying the employer's motion for corrections in and additions to the commissioner's finding, the employer appealed to the superior court, which ordered the case recommitted to the commissioner for a further finding on certain issue, and claimant appeals. On the employer's plea to the jurisdiction and motion to erase the case from the docket for want of jurisdiction.

Motion granted.

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

John H. Cassidy and Charles R. Summa, both of Waterbury, for the motion.

Michael V. Blansfield, of Waterbury, opposed.

MALTBIE, Chief Justice.

The compensation commissioner for the Fifth district made an award of compensation to the plaintiff under the Workmen's Compensation Act (Gen.St.1930, § 5223 et seq. as amended). One of the issues litigated before him was whether the defendant was within the scope of the compensation law as one who regularly employed five or more. The defendant made a motion to the commissioner seeking many corrections in and additions to the finding, and also asking the commissioner to find the facts upon which he based certain of his conclusions, among them that the defendant was within the scope of the act. The commissioner denied the motion upon the ground that the procedure adopted did not comply with the provisions of section 259, page 81, of the Practice Book (1934), in that the defendant filed with the motion a transcript of all the testimony without separating or specifically referring to the particular portions relevant to the various changes sought. The defendant thereupon appealed to the superior court and the first reason of appeal was the action of the commissioner in denying the motion upon that ground. The trial court, Cornell, J., filed a memorandum of decision in which it concluded that the commissioner should have acted on the motion, and stated: " The appeal is sustained on the ground of the first reason and the cause is remanded to the commissioner to consider and act upon the motion to correct the finding." The clerk prepared a judgment-file, dated November 17, 1936, in accordance with the memorandum. The commissioner then considered the motion to correct and denied it in all except one respect, but did not make any further finding of the facts upon which he based his conclusion that the defendant was within the scope of the act. He did not make another award after acting upon the motion. The defendant then filed amended reasons of appeal.

The case again came before the superior court, and on February 10th that court, McEvoy, J., made an order that the judgment-file previously entered should be stricken from the record and directed the clerk to enter in substitution for it a similar paper except that the word " order" should be substituted for the word " judgment" as used in it and the final paragraph, in which the appeal was sustained, should be omitted. The clerk did prepare such an order, dating it November 17, 1935, but marking it as filed February 13, 1937. The court on February 26, 1937, filed a memorandum in which it particularly reviewed the evidence upon the issue of the number of persons regularly employed by the defendant and ordered that the case be returned to the commissioner for a further finding in regard to that matter. On March 16, 1937, after a conference with counsel as to the method of procedure, it filed a second memorandum of decision in which it directed that the case be recommitted to the compensation commissioner and that " an order-not a judgment," in accordance with the memorandum previously filed be entered. The clerk prepared a formal order which was filed the same day, in accordance with the directions in the memorandum of decision. From that order the plaintiff has appealed. The defendant has filed a plea to the jurisdiction and motion to erase the case from the docket of this court for want of jurisdiction, both raising substantially the same grounds: First, that there was no judgment in the case from which the appeal would lie; and, secondly, that the appeal was not filed until more than two weeks after the order of the court from which it was taken. The plaintiff filed a motion to strike the plea to the jurisdiction from the record on the ground that it raised the same question as the motion to erase for want of jurisdiction and was superseded by it, and at the same time filed an answer to the plea denying that the appeal was not taken within two weeks from the entry of the order from which it was taken.

In Powers v. Hotel Bond Co., 89 Conn. 143, 149, 93 A. 245 248, we said of an appeal in a workmen's compensation case: " We hold such ‘ appeal’ to be an original application to the superior court ‘ to exercise’ its appropriate judicial power in respect to acts done by the administrative tribunal in excess of its power or in the unlawful abuse of that power. Moynihan's Appeal, 75 Conn. 358 [360] 53 A. 903. When a finding and award of the commissioner appealed from are unauthorized in law, irregular or informal, or based upon a misconception of the law, or of the powers or duty of the administrative tribunal, or are so unreasonable as to justify judicial interference, we may on appeal set aside the award." Of the action which it is proper for the superior court to take upon such an appeal, we said in Thompson v. Twiss, 90 Conn. 444, 446, 97 A. 328, 330, L.R.A. 1916E, 506: " If the trial court finds no harmful error in the appeal from the commissioner, it should dismiss the appeal if it finds harmful error, either in a conclusion of law reached, or in a conclusion of fact reached, or in the finding of a material fact or the refusal to find a material fact, it should, if the award may be changed or modified without requiring a further hearing, sustain the appeal to this extent and direct the commissioner to make the award in accordance with its direction. If the award cannot be changed or modified in accordance with the conclusions of the trial court without further hearing upon the facts, it should sustain the appeal, and indicate in the judgment or its memorandum the grounds of its action." In harmony with the last clause in the quotation just made, we said in Cormican v. McMahon, 102 Conn. 234, 238, 128 A. 709, 710: " Cases under the Workmen's Compensation Act (Gen.St.1918, §§ 5341-5390) are upon a different basis from actions between ordinary litigants. no case...