Fusaro v. Chase Brass & Copper Co.
| Decision Date | 10 December 1956 |
| Docket Number | No. 23902,23902 |
| Citation | 154 A.2d 138,21 Conn.Supp. 240 |
| Court | Connecticut Superior Court |
| Parties | James FUSARO v. CHASE BRASS AND COPPER COMPANY, Inc., et al. |
Arthur B. O'Keefe, Jr., New Haven, and Allyn L. Brown, Jr., Norwich, for plaintiff.
Waller, Smith & Palmer, New London, for Roger Sherman Transfer Co., intervening plaintiff.
Larkin & Pickett, Waterbury, for defendant O'Donnell.
Wiggin & Dana, New Haven, for defendant Chase Brass & Copper Co.
The plaintiff sues to recover damages for personal injuries claimed to have been sustained as a consequence of (1) the negligence of the defendant Chase Brass and Copper Company, hereinafter referred to as the defendant employer, and (2) the negligence of its servant and employee, the defendant O'Donnell, for whose negligence the defendant employer is also charged under the rule of respondeat superior. The plaintiff was an employee of The Roger Sherman Transfer Company, hereinafter referred to as the transfer company, and admittedly is entitled to receive, and has received, compensation payments. Pursuant to the provisions of § 3040d of the 1955 Cumulative Supplement, the transfer company has intervened as a party plaintiff to recover such payments.
Both defendants have filed a plea to the jurisdiction and in abatement on the basic ground that the transfer company was doing the work for the defendant employer as an independent contractor; that this work, being done by the transfer company and its employee, the plaintiff, was to assist in cleaning up the defendant employer's factory after the flood of August, 1955; that this work was a part or process of the defendant employer's trade or business and was performed, and the plaintiff's injuries received, on premises owned and controlled by the defendant employer within the provisions of § 7423 of the 1949 Revision; and, so, that the provisions of § 7419 of the 1949 Revision make the plaintiff's remedy under the compensation act an exclusive one, precluding the maintenance of a common-law action for damages, such as this. To this plea the plaintiff filed a motion to strike the plea from the record and a demurrer.
Under the provisions of Practice Book, § 81, the filing of the demurrer operated as a waiver of the motion to strike, which, although addressed to the plea rather than to the complaint, obviously falls within the scope of the rule. Therefore, the demurrer, alone, will be considered.
Except for paragraph 8, the plea to the jurisdiction appears to be addressed to the cause of action against both defendants without differentiation between them. Paragraph 8 of the plea appears to be addressed to the cause of action against the defendant O'Donnell alone, and it is obvious that this claim as to O'Donnell is sound only if the plea to the jurisdiction is sound as to the defendant employer. Since, as hereinafter pointed out, the plea is not sound as to the defendant employer, there is no occasion for any consideration of the claim made in paragraph 8 of the plea.
The basic claim, which forms grounds 1, 7 and 9 of the demurrer, is that the allegations in the plea to the jurisdiction are of a character such that they may properly be made only in a plea in bar, that is, a special defense in the answer. If sound, this claim is obviously dispositive of the demurrer adversely to the defendants.
That the plea to the jurisdiction and in abatement, if not objected to, is a permissible method of raising the claim that an injured plaintiff is covered by the compensation act so that his exclusive remedy is under that act and he is thereby precluded from maintaining a common-law action for damages was in effect determined in the case of Pallanck v. Donovan, 105 Conn. 591, 595, 136 A. 471. However, in other cases similar claims have been raised by a special defense in the answer. Such was the procedure adopted in cases such as Bates v. Connecticut Power Co., 130 Conn. 256, 33 A.2d 342, and Battistelli v. Connohio, Inc., 138 Conn. 646, 649, 88 A.2d 372. Either procedure should produce the same ultimate...
To continue reading
Request your trial
-
Cady v. IMC Mortg. Co.
...parties have cited to cases in several other jurisdictions that support each of their positions. Compare Fusaro v. Chase Brass and Copper Co., 21 Conn.Supp. 240, 154 A.2d 138 (1956) (concluding that preclusion due to a Workers' Compensation claim is an affirmative defense); accord Turner Co......
-
Comm'r of Mental Health & Addiction Servs. v. Saeedi
...Court of subject matter jurisdiction....” Id., at 471, 604 A.2d 814. The court, adopting the reasoning of Fusaro v. Chase Brass & Copper Co., 21 Conn.Supp. 240, 154 A.2d 138 (1956), determined that “[t]he confusion [about whether electing an exclusive remedy divests a tribunal of subject ma......
-
Grant v. Bassman
...a claim is subject matter jurisdictional." Gurliacci v. Mayer, 218 Conn. 531, 543, 590 A.2d 914 (1991). In Fusaro v. Chase Brass & Copper Co., 21 Conn.Sup. 240, 154 A.2d 138 (1956), the trial court discussed the appropriate procedural mechanism for raising a claim that an injured plaintiff ......
- Hornstein v. Marks