Hartz v. Hartford Faience Co.

• Decision Date: 02 June 1916
• Citation: 90 Conn. 539,97 A. 1020
• Court: Connecticut Supreme Court
• Parties: HARTZ v. HARTFORD FAIENCE CO.

97 A. 1020

90 Conn. 539

HARTZ

v. HARTFORD FAIENCE CO.

Supreme Court of Errors of Connecticut.

June 2, 1916.

Thayer, J., dissenting.

Appeal from Superior Court, Hartford County; Joseph P. Tuttle, Judge.

Proceedings under the Workmen's Compensation Act by Elizabeth Hartz for compensation for the death of her husband, opposed by the Hartford Faience Company, the employer. Compensation was awarded, the award reversed by the superior court, and the claimant appeals. Judgment of the superior court set aside, and the court directed to enter judgment dismissing the appeal from the Compensation Commissioner.

Francis W. Cole and Thomas Hewes, both of Hartford, for appellant. De Lancey S. Pelgrift, of Hartford, for appellee.

WHEELER, J. The compensation commissioner found that Mr. Hartz was in the employ of the defendant on November 20, 1914, as a shipping clerk, and during this day pursued his regular duties and suffered a personal injury consisting of a strain occasioned by lifting or attempting to lift a barrel, and that the injury arose out of and in the course of his employment. The finding of the commissioner recites at length the evidence but fails to state the facts leading up to, attending, and following the injury.

The finding of a commissioner should not contain excerpts from evidence and purely evidential facts hut should merely state the facts found, the claims of law made, and the rulings on evidence excepted to; in short, it should conform to the finding required of the superior court by the rules of court and the practice prevailing in that court.

However, the memorandum of decision filed by the trial judge is made a part of the finding and from that it appears that the trial judge properly held as conclusive the finding of the commissioner that the contributing cause of death consisted of a strain caused by lifting, or attempting to lift, a barrel on November 20th. But the memorandum goes on to say that this fact must be taken in connection with the subordinate facts in determining whether the injury arose out of or in the course of the employment. And it assumes that the commissioner must have found that Mr. Hartz's duties were confined solely to clerical and inspecting work and involved no lifting whatever, and that his only duty in regard to the barrel was to weigh it and that he was told not to move it because he was not strong enough, and that the defendant had there plenty of men present whose duty it was to do the lifting.

The respondent's testimony related to the lifting of a barrel on the 17th; that of the claimant to the lifting of a barrel on the 20th. The assumption of the trial court is made upon the theory that the commissioner must have found the circumstances surrounding the lifting of the barrel as related by the respondent's witnesses as occurring on the 17th, instead of as related by the claimant's witnesses on the 20th. That is, that the witnesses were telling the same incident as having occurred on different days. Manifestly, this may not have been so. There was clear evidence of two incidents on two different days. The evidence of what took place on these two days was conflicting, and the assumption made by the trial judge was unjustified.

Unless the facts in evidence are practically undisputed, an appellate tribunal cannot with fairness to the rights of the parties assume a finding of facts as made by the tribunal under review when there is no finding of record of the tribunal of these facts.

The memorandum does not find these facts expressly; if it can be construed as making a finding of the facts of its assumption, our consideration of the evidence would not satisfy us that the commissioner erred in not finding that Mr. Hartz was told not to lift the barrel, and that there were plenty of men around to do it. The commissioner might fairly have found from the evidence that Mr. Hartz was an ambitious shipping clerk of exceptional energy, and as such that, to facilitate his employer's business and the performance of his own work, he lifted this barrel. If his injury happened in this way, it is not an unreasonable conclusion that it arose out of and in the course of his employment. What he was engaged in doing was for his master's benefit and to push on his work. If a workman depart temporarily from his usual...