Marchiatello v. Lynch Realty Co.

• Decision Date: 22 December 1919
• Citation: 94 Conn. 260,108 A. 799
• Court: Connecticut Supreme Court
• Parties: MARCHIATELLO v. LYNCH REALTY CO.

108 A. 799

94 Conn. 260

MARCHIATELLO v. LYNCH REALTY CO.

Supreme Court of Errors of Connecticut.

December 22, 1919

Case Reserved from Superior Court, New Haven County; John P Kellogg, Judge.

Proceeding under Workmen's Compensation Act by Angelo Marchiatello for compensation for death of her husband, opposed by the Lynch Realty Company, employer. Pro forma judgment by the compensation commissioner for employer, and case reserved to Supreme Court of Errors by the superior court. Superior court directed to remand case with instructions to make award in favor of plaintiff.

Marchiatello was employed as night watchman on the premises of the respondent employer, who was engaged in erecting dwelling houses. The employer had a small office in a rather remote part of Waterbury, which was used in the work. It contained three rooms, one used at this time as a construction office another by the foreman, who was asleep at the time in question, and the other room, separated from the construction office by a board partition, in which the night watchman and a fellow employé were engaged in conversing.

The night watchman was on Sunday morning, October 21, 1917 engaged upon his duties, and upon a desk in the construction office at this time lay a Colt automatic pistol. This pistol had been in the construction office for a sufficient length of time, so that the fact that it was kept there was known to a number of the employés of the respondent employer including Cote, a 15 year old boy, who acted as water and errand boy and in part as timekeeper. Cote had seen and handled the pistol before in the office. The foreman was also paymaster, and frequently had large sums of money in his possession in the construction office, and as a matter of personal protection he carried with him and kept in reach this pistol.

Cote reached the office on this Sunday morning, and saw the pistol on the desk, was curious about it, and while fooling or experimenting with it, without intent on his part to do harm, the pistol went off, and the bullet penetrated the board partition separating this office from the room in which the night watchman was, and hit him while he was engaged in the course of his employment, and inflicted a wound from which he died.

Francis P. Guilfoile, of Waterbury, for plaintiff.

Wilson H. Pierce, of Waterbury, for defendant.

WHEELER, J.

In this case the compensation commissioner made a pro forma award and filed the same in the superior court and that court, being of the opinion that the decision therein involved principles of law which were not free from reasonable doubt, and which public interest required should be determined by this court, reserved the case for the opinion of this court. General Statutes, § 5383, as amended by chapter 142, § 16, Public Acts 1919.

The finding of the commissioner should have omitted its statement of what different witnesses testified to, and it should have included such facts as might have been found from this testimony. We cannot find the facts from this testimony, and hence we cannot use it in any degree. The finding should be made up of material and relevant facts proven before, or ascertained by, the commissioner, together with the questions of law made by the parties and those ruled upon by the commissioner.

The...