Lake v. City of Bridgeport

• Decision Date: 03 April 1925
• Citation: 102 Conn. 337,128 A. 782
• Court: Connecticut Supreme Court
• Parties: LAKE v. CITY OF BRIDGEPORT.

128 A. 782

102 Conn. 337

LAKE v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

April 3, 1925

Appeal from Superior Court, Fairfield County; L. P. Waldo Marvin Judge.

Proceeding under Compensation Act by Fred B. Lake, for injuries, opposed by the City of Bridgeport. Award for claimant by commissioner was affirmed on appeal to superior court, and defendant appeals. No error.

The claimant was appointed a special policeman of the city of Bridgeport September 30, 1916. It was a part of his duties to preserve peace and order at places to which he was assigned by his superiors. The claimant had been assigned to special police duty at the Strand Theater in Bridgeport, and was required to report at the police precinct nearest thereto before going on duty and after going off duty While on his way to report for duty at the police precinct on January 1 1922, he was struck by an automobile on Fairfield avenue, and received injuries resulting in total incapacity for about one year, followed by partial incapacity still continuing at the date of the hearing in February, 1924.

The commissioner found, as conclusions of fact, that the claimant was an employee of the respondent city, that he was not a casual employee, and that his injuries arose out of and in the course of his employment, and awarded compensation and payment of expenses for hospital and medical care.

Respondent appealed to the superior court on the ground that the commissioner's conclusions were unsupported by the finding, and that the commissioner erred in refusing to correct the finding as requested. From the dismissal of its appeal by the superior court, the respondent appeals on substantially the same grounds.

Joseph J. Devine, of Bridgeport, for appellant.

Clifford B. Wilson, of Bridgeport, for appellee.

BEACH J. (after stating the facts as above).

The assignments of error for refusals to correct the finding are inextricably involved in the discussion of the three principal questions presented--whether the claimant was an employee of the respondent, whether, if so, he was merely a casual employee, and whether his injuries arose out of and in the course of his employment.

The charter of the city of Bridgeport gives the common council the right to pass ordinances concerning the police department, and in 1914 this ordinance was passed:

" All persons now special officers shall cease to be special officers on April 1, 1913 (sic) before, on, or after that date the board of police commissioners may in their discretion, upon the written application of any business firm, corporation, or property owner, which application shall state the reasons for seeking such appointment, appoint one or more persons to be special officers to serve from April 1, 1913, or from the date of their later appointment, as the case may be, the authority as police officers of such special officers, so hereafter appointed shall be limited to the business of their employment; and such persons so appointed shall cease to be special officers upon the termination of their employment or sooner; upon the revocation of their appointment."

The police commissioners, in October, 1920, passed the following resolution:

" That all special policemen working for the different theaters and at all public gatherings be assigned to said theater and/or public gathering at the discretion of the superintendent and that the person or persons in charge of said theater or public gathering pay this department for such services rendered by said special policeman and this department in turn pay said special policeman for such services rendered."

Prior to the passage of the resolution just quoted claimant received his pay directly from the person who requested the service rendered; after that date the testimony shows that the practice was to require the theater to pay the police department in advance by check, which was indorsed over to the claimant after his week's services had been rendered. Section 5388, G. S., as amended by section 11 of chapter 306, P. A. of 1921, enlarges the original definition of " employee" in the Workmen's Compensation Act, by providing that employee--

" * * * shall also include any salaried officer or paid member of any police department or fire department of any municipal corporation in the state, irrespective of the manner in which he is appointed or employed."

These words were added to the statute at the session of the General Assembly next following the decision in McDonald v. New Haven, 94 Conn. 403, 109 A. 176, 10 A.L.R. 193, which held that a member of the fire department of that city was not an employee as that term was then defined in the Workmen's Compensation Act. And in view of the plain intent to change the law thus announced, and the broad language of the amendment, we are of opinion that the claimant was an employee of the city of Bridgeport, although employed only as a " special" policeman upon the terms above indicated.

It is also apparent from the testimony that the claimant was assigned for duty at the Strand Theater, not as its servant but as a policeman representing for the time being the authority of the city of Bridgeport. Manifestly the attendance of a policeman at public gatherings in theaters is as much for the safety of the public as for the benefit of the management. It is actually and ostensibly an exercise of the police power. In Hartford v. Parsons, 87 Conn. 412, 87 A. 736, Ann.Cas. 1916A, 1182, we held that an ordinance of the city of Hartford requiring the owner or manager of any theater or opera house to have in attendance at every public performance or gathering a regular or supernumerary member of the city police or fire department to see that the city ordinances as to exits, fire escapes, etc., were obeyed, was, on its face, a proper and reasonable exercise of the police power of the city; and we further expressed the opinion that the city of Hartford had power to exact from the owner or manager of a theater, for every performance at which a fireman or policeman was required to be in attendance, a fee equivalent to his pay; but we also held in that case that, because the superintendence of a theatrical performance for the safety of the public was an exercise of the police power, the theater owner could not be compelled to pay...