Howe v. Watkins Bros.

• Decision Date: 16 May 1928
• Citation: 142 A. 69,107 Conn. 640
• Court: Connecticut Supreme Court
• Parties: HOWE v. WATKINS BROS. ET AL.

142 A. 69

107 Conn. 640

HOWE v. WATKINS BROS. ET AL.

Supreme Court of Errors of Connecticut.

May 16, 1928

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Proceeding under the Workmen's Compensation Act by Harold G. Howe opposed by Watkins Bros., employers, and the American Mutual Liability Insurance Company, insurance carrier. From a judgment of the superior court dismissing the defendants' appeal and affirming the award of the Compensation Commission for the claimant, the defendants appeal. Error.

Wheeler C.J., and Banks, J., dissenting from rescript.

S. Polk Waskowitz and Edward S. Pomeranz, both of Hartford, for appellants.

William S. Hyde, of South Manchester, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

This is an appeal from the dismissal by the Superior Court of an appeal from an award to the claimant. The facts found are as follows: The defendant employers maintain at Manchester a large furniture store, and in connection therewith an undertaking establishment, in which the claimant was employed as a licensed embalmer. The store is closed Thursday afternoons each week, but the undertaking establishment remains open with some one in charge to take calls. The claimant some time prior to the date of the injury had purchased for himself an automobile, which was registered in his name. He had an arrangement with the defendant employers that he was on occasion to use the car in their business and was to be paid therefor either in money or in gasoline or oil, and he had prior to the date of the accident on occasion used the car for them and been compensated in this way. It is the custom in the undertaking business to keep vehicles used in it in a clean and orderly condition, and this rule prevailed at the defendant employers' establishment. On Thursday afternoon, April 29, 1926, the claimant was on duty in the undertaking establishment alone, his duty being to take any calls that might come in and do whatever might be necessary to further the defendant employers' interest. His automobile was in their garage in back of the establishment, for the purpose of being used in response to any calls for his services that might come in. It needed washing, and in accordance with the custom prevailing in the employers' business of keeping its vehicles clean, the claimant decided that it ought to be cleaned so that it might be presentable in responding to whatever business calls might come in. He went to the garage and washed and cleaned the car. In washing it his chief object was to have it in a clean condition for the employers' business, which was a distinct benefit to them. While washing one of the rear fenders he cut his right index finger. This apparently slight injury became infected, due to a germ which entered through the cut, resulting in a long disability. The commissioner concluded that the claimant sustained the injury while he was doing something for the benefit of his employers and that it arose out of and in the course of his employment.

The defendants sought several corrections in the finding, and all the evidence has been brought before us. Certain of the additions sought should have been made, and we add the following to the finding: The automobile in question belonged to the claimant, was registered and insured by him as a pleasure car, and had been used by him to go to and fro between his home and the place of business. At times he had it washed at a garage where the cars belonging to his employers and that of one Anderson, their assistant manager in charge of the undertaking department, were also washed; the claimant himself paid for the washing of his car, but those belonging to his employers and Anderson were paid for by the former. On Thursday afternoon of the injury there was a time when the claimant was not occupied with the business of his employers and he decided to wash the running gear of the car, although there was nothing urgent about his doing it at that time.

These additions should be made to the finding, not because in themselves they would be material in procuring a different conclusion than that at which the commissioner arrived, but because they afford a more complete picture of the situation from which to approach that portion of the motion to correct which presents the real issue in the case. The motion seeks to strike out from the finding those portions in which it is stated that the claimant, in accordance with the custom prevailing in his employers' business of keeping its vehicles clean, decided that the car ought to be cleaned so that it might be presentable in responding to whatever business calls came in, and that in washing the car his chief object was to have it in a clean condition for the employers' business, which was a distinct benefit to them. That he was at the time in question in the course of his employment cannot be questioned, for while at the time he was not engaged in any duty pertaining to it, he was during the period of the day when he suffered his injury, and in fact during the entire 24 hours of the day, subject to the call of his employment or the order of his employers. Moreover, upon the finding it is evident that the automobile was on the afternoon in question so far devoted to the employers' business that had the claimant been injured by reason of any use to which he was putting it in furtherance of that business it would not be possible to escape the conclusion that the injury arose out of the employment. If it is so that his purpose in washing the car was to have it presentable should he be called upon to answer any call in the business of his employers, in accordance with the custom prevailing in their business to keep their vehicles clean, and was acting for the benefit of his employers, it would be difficult to escape the same conclusion. If, on the other hand, the claimant was taking advantage of a time when the duties of his employment did not call for attention to wash the car for his own purposes, the injury could not be said to arise out of the employment. The motion to strike out the finding as to his intent and purpose therefore reaches the heart of the case.

A finding of intent or purpose ordinarily is one of a primary fact, and where it is supported by no direct evidence it is an inference drawn from all the relevant facts and circumstances presented by the evidence and is not a conclusion from subordinate facts (Goodhart v. State, 84 Conn. 60, 68, 78 A. 853, Ann.Cas. 1912B, 1297; Luce v. Niantic M. O. & G. Co., 86 Conn. 147, 150, 84 A. 521), and that this was the nature of the finding in this case appears from its position among the subordinate facts and not among the...