Johnson v. Mortenson

• Decision Date: 07 November 1929
• Citation: 110 Conn. 221,147 A. 705
• Court: Connecticut Supreme Court
• Parties: JOHNSON ET AL. v. MORTENSON ET AL.

147 A. 705

110 Conn. 221

JOHNSON ET AL. v. MORTENSON ET AL.

Supreme Court of Errors of Connecticut.

November 7, 1929

Case Reserved from Superior Court, Hartford County; John Rufus Booth, Judge.

Action by Oscar L. Johnson and another against Chris Mortenson and another for a declaratory judgment determining the rights and liabilities between the parties, brought to the superior court and reserved by that court for the advice of this court. Questions answered.

Contractor after compensation award to subcontractor's employee against latter and contractor jointly, held entitled to recover from subcontractor any amount paid by him. Workmen's Compensation Act, Gen.St.1918, § 5345 (C.G.S.A. § 31-154).

The complaint, all of the allegations of which are admitted by the answer, sets forth that the plaintiff Johnson, a general contractor, in 1927 took a contract to build a house in West Hartford, and the defendant Mortenson took from him a subcontract to do certain work thereon, including the digging of a trench for sewer connection. Antonio S. Pascoal had a contract of employment with Mortenson on his subcontract and, while he was engaged in digging the sewer trench, it caved in, causing his death. In consequence, the compensation commissioner for the First district made an award, in favor of the dependent widow and minor children of Pascoal, against both Johnson and Mortenson, and their respective insurers who are also parties to this action, which was affirmed on appeal. The premium on the compensation insurance held by each was based upon his pay roll. The pay roll on which the premium on Mortenson's insurance was based included Pascoal, but that on which Johnson's was computed did not.

The prayer is for a declaratory judgment determining the ultimate liability for the satisfaction of the award, and whether any of the parties may recover from any of the others any sums which they have paid or may pay in the future, toward the satisfaction of the judgment rendered in the compensation proceedings.

The questions reserved are: Upon whom is imposed the ultimate liability for the satisfaction of the award? Are the plaintiffs or the defendants or either of them entitled to contribution from any other party or parties to this action in the event of future payment or satisfaction of the judgment or any portion thereof, or entitled to recover, from such other parties, or any of them, any sums which they may pay, have paid, may be forced to pay, or have been forced to pay toward the satisfaction of the judgment?

George E. Beers, of New Haven, and Edward C. Carroll, of Hartford, for plaintiffs.

Ralph O. Wells, of Hartford, for defendants.

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

HINMAN, J.

The situation and obligations of the parties to this action--the plaintiff Johnson as general contractor and the defendant Mortenson as subcontractor--so far as concerns the claimants as dependents of the employee, Pascoal, were determined in Pascoal v. Mortenson, 109 Conn. 39, 145 A. 149, 151, wherein the award against both, and their respective insurers jointly, was affirmed as being in conformity to section 5345 of the General Statutes 1918. We there held (page 44 of 109 Conn., 145 A. 149) that, under that statute, no distinction can be recognized " in liability to the claimant" as between a contractor and his immediate employer; each being " a principal employer as to the injured workman." Palumbo v. Fuller Co., 99 Conn. 353, 365, 122 A. 63; Crane v. Peach Brothers, 106 Conn. 110, 137 A. 15; Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778, 58 A.L.R. 861.

The instant case presents the further question, advanced in Pascoal v. Mortenson, supra, but not determined by the award and held not to have been within the appeal, as to what are the rights and liabilities of Johnson and Mortenson, as between themselves. The claim made on behalf of Johnson is that, although he as general contractor and Mortenson as subcontractor are both, without distinction as between them, liable for compensation on account of Pascoal, yet, except in favor of such employee, the obligation to pay compensation is primarily that of Mortenson, the immediate employer of the injured workman, and the situation of the general contractor is such as to entitle him to reimbursement by such immediate employer, for compensation payments to which he is subjected by reason of the award.

The Compensation Acts of some of the states contain express provisions imposing primary liability upon the subcontractor, as immediate employer, and making the principal contractor only secondarily liable. Also, " in many instances, if the contractors or subcontractors have insured their liability to their employees then the principals or principal contractors are relieved from liability. But if a contractor or subcontractor, who is the direct employer, has failed to secure compensation payments by insurance, then the liability attaches to the principal or the principal contractor." Bradbury, Workmen's Compensation (3d Ed.) p. 264. Our act contains no such provisions. Under section 5345, in cases falling within it, the principal employer or contractor, his subcontractor, and their respective insurers, if any, are equally responsible, so far as concerns the claimant. Palumbo v. Fuller Construction Co., supra, page 365 of 99 Conn., 122 A. 63.

Some of the compensation acts expressly provide a remedy for the contractor as against the subcontractor. The Virginia act (section 20) provides that the contractor shall be liable to pay to the employee of the subcontractor any compensation which he would have been liable to pay if that workman had been immediately employed by him, but that " where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section." Acts 1926, c. 7, pp. 9, 10. The Illinois act (section 31) provides that " in the event the contractor shall pay compensation under this section he may recover the amount thereof from the subcontractor, if any." Laws 1919, p. 553. These examples fairly illustrate the nature of the enactments in those states which undertake to legislate on this subject. See Bulletin of Labor Statistics, Dept. of Labor, No. 423, Workmen's Compensation Legislation as of July 1, 1926.

As we have seen, section 5345 has been construed as recognizing no distinction between principal contractor and subcontractor as to liability to a claimant for compensation but as making both primarily liable to him. The better view and practice of the compensation commissioners appears to have been to regard their jurisdiction as limited to determination of the right of the employee to compensation and as to who is liable therefor to such claimant, leaving the rights and liabilities between those held jointly liable to the claimant " to be worked out in such proceedings, among themselves, as may be brought for the purpose." See Freeman v. Furrey, 2 Conn. Comp. Dig., Part I, 400.

In Witchekowski v. Falls Co., 105 Conn. 737, 741, 136 A. 565, 567, it was held that " for the commissioner to attempt to determine * * * which of two insurers is liable for payments already made by the employer, was clearly to exceed his jurisdiction" --citing Hargraves v. Shelvin Mfg. Co., 179 A.D. 477, 165 N.Y.S. 960. It appears that equal impropriety would characterize determination of the question of ultimate liability between contractor and subcontractor, as to which no rule is afforded by the statute which confers the commissioner's jurisdiction but also marks its limitations.

The object of such provisions as those contained in section 5345 is to afford full protection to workmen, by preventing the possibility of defeating the act by hiring irresponsible contractors or subcontractors to carry on a part of the employer's work. White v. George A. Fuller Co., 226 Mass. 1, 4, 114 N.E. 829. " The special purpose of section 5345 is to protect employees of minor contractors against the possible irresponsibility of their immediate employers. * * * Otherwise, section 5345, and, indeed, the whole policy of the Workmen's Compensation Act, might be evaded by the device of the owner parceling out the work of construction among a number of separate contractors no...