Hoard v. Sears, Roebuck & Co., Inc.

• Decision Date: 06 November 1936
• Citation: 188 A. 269,122 Conn. 185
• Parties: HOARD v. SEARS, ROEBUCK & CO., Inc.
• Court: Connecticut Supreme Court

188 A. 269

122 Conn. 185

HOARD v. SEARS, ROEBUCK & CO., Inc.

Supreme Court of Errors of Connecticut.

November 6, 1936

Appeal from Court of Common Pleas, New Haven County, District of Waterbury; Miles F. McNiff, Deputy Judge.

Action by William J. Hoard against Sears, Roebuck & Company Incorporated, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, tried to the jury. The court directed a verdict for the defendant, and from the judgment rendered thereon the plaintiff appeals.

No error.

Michael V. Blansfield and Harry M. Albert, both of Waterbury, for appellant.

William W. Gager and Henry C. Campbell, both of Waterbury, for appellee.

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

AVERY Judge.

The plaintiff brought this action to recover damages for injuries alleged to have been received through the negligence of the defendant's servant. The complaint is in two counts. In the first count, it is alleged that the plaintiff was sent by his employer, the Hathaway Trucking Company, with a truck to a yard in the rear of defendant's store at Waterbury to empty a bin containing rubbish and clean up the yard; and while so employed he was struck by an electric light globe thrown by one of defendant's servants from the third floor of the store, and injured. In the second count, the conduct of the defendant's servant was alleged to have been " wanton, deliberate and wilful." In its answer, the defendant, after denying the material allegations of the complaint, set up two special defenses. In the first special defense, the defendant set up that it regularly employed more than five employees and was subject to the terms of the Workmen's Compensation Act (Gen.St.1930, § 5226 et seq., as amended); that the plaintiff was employed by Erwin Hathaway and was acting in that employment in cleaning the yard and the rubbish box; that Hathaway was employed by the defendant to do this work which was a part or process of defendant's trade or business; that the injuries sustained by the plaintiff were sustained in the course of his employment; and that he had claimed compensation from his immediate employer and was receiving compensation from the employer's insurer. The second special defense is not material to any question raised upon this appeal.

After a trial to the jury, a verdict was directed for the defendant from which the plaintiff has appealed. The sole question before us upon this appeal is whether the trial court was correct in directing a verdict. The first special defense is based upon General Statutes, § 5230, which provides: " Principal Employer, Contractor and Subcontractor . When any principal employer shall procure 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 shall be a part or process in the trade or business of such principal employer, and shall be 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." We have held that to recover from a principal employer under this statute (1) the relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be in, on, or about the premises controlled by the principal employer; and (3) the work must 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; Fox v. Fafnir Bearing Co., 107 Conn. 189, 191, 139 A. 778, 58 A.L.R. 861; Massolini v. Driscoll, 114 Conn. 546, 551, 159 A. 480. As between all persons in the mutual relationship of employer and employee, who have accepted the provisions of the Compensation Act, the right to obtain and the liability to pay compensation under the act is substituted for the common-law rights and liabilities otherwise existing between them to the exclusion of the latter. Wells v. Radville, 112 Conn. 459, 463, 153 A. 154; Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 130, 157 A. 860.

The appellant contends first of all that Sears, Roebuck & Co. was not a principal employer of the plaintiff within the meaning of the Compensation Act and that Hathaway was an independent contractor. From the evidence certified, it appears that the jury, acting as reasonable men, might have found the following facts: Sears, Roebuck & Co. were engaged in the selling of all kinds of merchandise, having numerous stores in Connecticut and throughout the country. Their store in Waterbury was four stories in height and entirely occupied by them. In the rear of the store was a yard with a bin in which it was customary to place rubbish and waste matter. In the course of their business, merchandise which comes packed in crates, cartons, and boxes is uncrated in the store and the removal of this rubbish is necessary in the conduct of the business. The plaintiff was employed by Hathaway and had been for six months. Hathaway was in the trucking business and had a contract with Sears, Roebuck & Co. to supply their Waterbury store with sufficient equipment with two men thereon to take care of all their deliveries; pick up freight at the freight-house, and dispose of rubbish which accumulated in the rear of the yard. On the day of the accident, the plaintiff, pursuant to instructions from his immediate employer, went to the yard with a truck to clean the bin and remove the rubbish. While standing in the yard close to defendant's building and talking with another employee, he was struck by a glass globe which had been swept out of the third floor of the building and severely cut in the arm. Clearly, the work of removing the rubbish was essential to the operation of the store and was thus part of the trade or business of the defendant. Fox v. Fafnir Bearing Co., supra, 107 Conn. 189, 195, 139 A. 778, 58 A.L.R. 861. Further, the jury, acting as reasonable men, must have found that the plaintiff was injured while in the yard in the rear of defendant's store and close to the building; that the place was used by the defendant to keep rubbish accumulated in its store and for the removal thereof; and have concluded that the work was being done " about" premises under defendant's control within the meaning of the statute. As the work being done was a part or process of defendant's business, and done in or about premises under the defendant's control, and the person injured was an employee of a contractor who had contracted with the defendant to do the work, and the parties had accepted the provisions of the Compensation Act, the conclusion follows that the defendant was liable to pay compensation and not liable to an action at common law. If, as the appellant claims, the relationship between the defendant and Hathaway was such that the latter was an independent contractor, this would not, of...