Francis v. Franklin Cafeteria, Inc.

• Decision Date: 03 November 1937
• Citation: 123 Conn. 320,195 A. 198
• Court: Connecticut Supreme Court
• Parties: FRANCIS et al. v. FRANKLIN CAFETERIA, Inc., et al.

195 A. 198

123 Conn. 320

FRANCIS et al. v. FRANKLIN CAFETERIA, Inc., et al.

Supreme Court of Errors of Connecticut.

November 3, 1937

Appeal from Superior Court, Hartford County; Carl Foster, Judge.

No error.

Frederick J. Rundbaken and Moses Hartzmark, both of Hartford for appellants.

Edward S. Pomeranz and George Miske, both of Hartford, for appellees.

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

BROWN Judge.

The question determinative of this appeal is whether the plaintiffs' decedent, Julius R. Francis, at his death was an employee or an independent contractor. It is undisputed that the named plaintiff is his dependent widow within the Compensation Act, and that he was burned to death on November 20, 1936, while working on the defendant's premises cleaning a ventilating shaft. The finding, as amended by the slight corrections to which only the plaintiff is entitled contains these further material facts: The defendant has long conducted a restaurant in Hartford. As part of its ventilating system a shaft three feet in diameter leads from above the kitchen ovens to the outer air. To keep this functioning properly, it is necessary at regular intervals to clean out the refuse which accumulates upon the sides thereof. This is an essential part in maintaining the defendant's business.

The decedent for years engaged in ordinary work taking odd jobs whenever he could find them. He sought work painting and cleaning chimneys, and as a further activity cleaned out ventilating shafts in restaurants. He had no regular place of business, telephone, billheads, cards, or other outward indication that he was engaged in any regular business, except as inferable from his efforts in going from place to place seeking to do specific jobs. On at least one previous occasion he had done the job of cleaning this shaft of the defendant. Shortly before his death he had performed this kind of work for the Lobster Grill and for the Sea Food Restaurant in Hartford. For the latter, the owner paid him a price fixed by contract. On November 20, 1936, the decedent entered the defendant's premises and solicited the job of cleaning out the shaft at the agreed price of $25. Upon suggestion from the defendant's manager that the price was high, the decedent responded that he would have to employ two helpers and buy necessary supplies of gasoline and powder. Thereupon the defendant, through its manager, gave the job to the decedent without further instruction, except that the work be properly done. The job was a simple one, requiring no special skill or tools. On several previous occasions it had been done by the defendant's regular employees. To avoid interfering with defendant's business, it was agreed that the decedent should do the work after business hours on the night of November 20th, and finish the job before business commenced the next morning. He was instructed that if this proved impossible, he would be told when to return to complete it. The decedent secured Valentine Nelligan only to help him on the job, agreeing to pay him something for spending money. Nelligan had helped him on similar jobs before in a like capacity. The decedent purchased gasoline, and used for containers abandoned cans found in the restaurant. His tools consisted of a putty knife, which he purchased for 10 cents, and a scrubbing brush for 20 cents. He purchased powder also to be used in the performance of the work. The decedent used a ladder which was in the restaurant, furnished by the defendant, to climb up into the shaft, which is some distance above the floor. He also used rags found in the restaurant, given him by an employee of the defendant.

The decedent and Nelligan arrived at the job twenty minutes before they actually began work; the defendant's manager instructing them to wait until the kitchen help left, which they did. The manager gave the decedent a key of the premises, and told him when the work was done to hang it at a designated place that the regular employees might use it to open for business in the morning. To provide light in the shaft while at work, the decedent used an electric light attached to a switch owned by the defendant. He began work about 8:30 p. m. and continued until about 10 p. m., when apparently he in some way broke the bulb of the electric light, causing the gasoline fumes to ignite, enveloping him in flames, and burning him so severely that death resulted a few hours later.

The commissioner further found that the defendant exercised no control over the decedent in the performance of his work; did not direct his movements in any manner; did not control the method to be adopted by him, except as to the result; and that all the elements existed constituting him an independent contractor. He therefore concluded that the decedent was not an employee within the contemplation of the Compensation Act (Gen.St.1930, § 5223 et seq.), as claimed by the plaintiff, but was an independent contractor.

‘ 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 (3d Ed.) 1098. Since approving this definition in Alexander v. R. A Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514, we have amplified it in applying the principle in other cases: ‘ When the doing of a specific piece of work is intrusted to one who exercises an independent employment and selects his own help and has the immediate control of them, and the right to control the method of conducting the work, the contractor is an independent contractor. * * * 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. ‘ Whatever the other conditions of a contract may be, if in its...