Luliewicz v. Eastern Malleable Iron Co.

• Decision Date: 16 April 1940
• Citation: 12 A.2d 779,126 Conn. 522
• Court: Connecticut Supreme Court
• Parties: LULIEWICZ v. EASTERN MALLEABLE IRON CO.

12 A.2d 779

126 Conn. 522

LULIEWICZ v. EASTERN MALLEABLE IRON CO.

Supreme Court of Errors of Connecticut.

April 16, 1940

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

Proceeding under the Workmen's Compensation Act by John Luliewicz employee, opposed by the Eastern Malleable Iron Company employer.The employee died after the compensation commissioner denied his application for compensation, and Mary Luliewicz, administratrix of the estate of John Luliewicz, deceased, filed a motion to reopen the award on the ground of newly discovered evidence.The defendant appealed to the superior court from a supplemental finding and award of the compensation commissioner for the fifth district acting for the commissioner for the first district adjuding that the former award in favor of the defendant be reopened because of newly discovered evidence, and from a judgment sustaining the appeal and remanding the case to the commissioner for further action, defendant appeals.

Appeal erased from the docket.

Ralph O. Wells, of Hartford, for appellant.

Harold J. Eisenberg, of New Britain, for appellee.

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

BROWN Judge.

On June 14, 1935, the compensation commissioner denied the application of the plaintiff's decedent for compensation from the defendant on a claim of disability from contracting silicosis, which arose out of and in the course of his employment by it.The decedent died February 7, 1939, and an autopsy performed shortly thereafter afforded evidence as to the condition of his lungs, material upon the question of whether or not he had been afflicted with this disease.Confining his decision solely to the plaintiff's motion to reopen the award on the ground of this newly discovered evidence, and expressly reserving a hearing on the merits to a later date, the acting commissioner on September 7, 1939, by his supplemental finding and award, reopened the original award.The defendant appealed to the Superior Court, claiming that in view of the time elapsed since the original award the commissioner had no power to reopen, that he erred in denying the defendant's motion to correct the supplemental finding and award, and also in opening the award when there was no proper basis for his conclusion that the autopsy evidence warranted him in so doing.The court overruled the defendant's first contention and remanded the case to the commissioner for appropriate action in response to the second and third.The defendant's claims upon its appeal to this court arise solely under the first above contention.

Unless the trial court's ruling that the commissioner had power to reopen and modify the award of June 14, 1935, and remanding the case for further proceedings, was a ‘ final judgment’ under § 5689 of the General Statutes, the defendant is not entitled to have its appeal considered.France v. Munson,123 Conn. 102, 109192 A. 706;Stamford Dock & Realty Corp. v. Stamford,124 Conn. 341, 342, footnote, 200 A. 343;Banca Commerciale Italian Trust Co. v. Westchester Artistic Works,108 Conn. 304, 307, 142 A. 838;Russell Lumber Co. v. J. E. Smith & Co.,82 Conn. 517, 74 A. 949.Its claim is that the plaintiff's motion to open the finding and award addressed to the...