Mathurin v. City of Putnam

• Decision Date: 31 January 1950
• Citation: 71 A.2d 599,136 Conn. 361
• Court: Connecticut Supreme Court
• Parties: MATHURIN v. CITY OF PUTNAM et al. (two cases). Supreme Court of Errors of Connecticut

Page 599

71 A.2d 599

136 Conn. 361

MATHURIN v. CITY OF PUTNAM et al. (two cases).

Supreme Court of Errors of Connecticut.

Jan. 31, 1950.

Eugene A. Massey, Hartford, with whom, on the brief, was Harold K. Watrous, Hartford, for appellants.

Frank E. Dully, Hartford, with whom on the brief, was Edward D. O'Brien, Hartford, for appellees.

William J. Willetts, Hartford, with whom, on the brief, was Griswold Morgan, New London, for Town of Putnam and others.

Before MALTBIE, C. J., BROWN, JENNINGS and DICKENSON, JJ., and INGLIS, Superior Court Judge.

DICKENSON, Judge.

In the first of these appeals the city of Putnam and its insurer have appealed from a decision of the Superior Court confirming an award of compensation to the plaintiff to be paid by them. In the second appeal, the same two defendants have appealed from the dismissal by the Superior Court of an appeal from the denial of a motion which they made to reopen the award and in which they claimed that by mistake the award was made against them when it should have been made against the town of Putnam and its insurer.

Some question has arisen whether it was proper in this case to take separate appeals to this court from the two decisions of the Superior Court. Where, after judgment and while an appeal is pending, a ruling is made as to some matter involved in the controversy between the parties, the proper procedure is, not to file a separate appeal from that ruling, but to bring it within the scope of the appeal which has already been taken by amending the assignments of error to include it and supplementing the record by any additional matter, for example, a further finding, necessary for its proper presentation to this court. Valluzzo v. Valluzzo, 103 Conn. 265, 266, 130 A. 126; Young v. Polish Loan & Industrial Corporation, 126 Conn. 714, 715, 11 A.2d 395; see Hiss v. Hiss, 135 Conn. 333, 338, 64 A.2d 173. In a workmen's compensation case, if an appeal has been taken from an award and is pending in the Superior Court, a ruling upon a motion affecting that award made subsequent to the appeal may, by analogy, be brought within the scope of that appeal; this can be accomplished by the filing of a supplementary appeal with the commissioner within the time allowed for taking appeals from awards, by proceedings before him analogous to those taken on an original appeal, and by amendment of the reasons of appeal filed in the Superior Court to include the new matter. In the present case, however, the appeal from the award had gone to judgment in the Superior Court before the motion to reopen was filed with the commissioner; that motion was based on the provision in § 7434 of the General Statutes that the commissioner 'shall * * * have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.' Mistake is one of the grounds upon which a commissioner may reopen an award under this provision. Kurzaji v. Warner & Bowman, 106 Conn. 90, 92, 137 A. 19. The denial of a motion to reopen an award made after an appeal from the award to the Superior Court has gone to final judgment is like a proceeding to secure a new trial under § 8013 in a regular court action after it has been finally determined; and where, as in this case, the denial of a motion cannot be brought within the scope of an appeal from the award pending in the Superior Court, it is the proper subject of a separate appeal to that court, and from its decision, to this court. State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761.

The finding in the first action is not attacked. The facts are as follows: The plaintiff is regularly employed as a brakeman. He has been a supernumerary policeman of the city of Putnam since August, 1945. When acting in the latter capacity he wears the uniform of the city police department and is assigned by the chief of police or his assistants to substitute for a regular policeman or to do special work. During most of the football season he had been working at the football field of the Putnam High School under such an assignment. At the beginning of the season the athletic director of the school explained to him what he was expected to do. He was paid by the board of education, and his pay was usually sent to the office of the police department in an envelope bearing his name and there delivered to him.

On October 26, 1946, the plaintiff was assigned to duty at the football field by the chief of police. A police sergeant was also on duty at the field. Early in the afternoon the ticket seller at the field called the plaintiff's attention to the fact that a man had refused to purchase a ticket. The ticket seller and the plaintiff had a discussion with the man and when he refused to purchase a ticket the plaintiff ordered him from the field. Upon his refusal to leave, the plaintiff attempted to escort him from the field and, when he resisted, placed him under arrest. The man kicked the plaintiff in the ankle, and in an ensuing scuffle the plaintiff's ankle was broken.

The commissioner ruled that at the time of the injury the plaintiff was an employee of the police department of the city and was performing his duties as such and that his injury arose in the course of his employment. The commissioner found that it was agreed that the workmen's compensation risk of the city was covered by the defendant Travelers Insurance Company with the exception of the police and fire departments and relief workers and that the risk of the police department was covered by the defendant Great American Indemnity Company. The latter company claimed that the plaintiff was employed by the board of education and not by the police department. The commissioner found that, while apparently neither insurance company had included moneys paid the plaintiff for acting as a supernumerary policeman on the football field in its audit, upon which its premium was based, that fact was not determinative of the issue. He made an award against the Great American Indemnity Company and the city of Putnam and dismissed the claim against the Travelers Insurance Company.

The Workmen's Compensation Act defines employer to mean 'any person, corporation, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of another for pay.' General Statutes, § 7416. The definition of employee includes 'any salaried officer or paid member of any police department.' The immediate question before us is not whether in fact the plaintiff was the employee of the police department but whether the commissioner's conclusion that he was, when considered on the basis of the subordinate facts, was so unreasonable and illogical as to be an abuse of discretion. Leszczymski v. Andrew Radel Oyster Co., 102 Conn. 511, 514, 129 A. 539. The award must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn form them. DiLauro v. Bassetti, 133 Conn. 642, 645, 53 A.2d 512; Conn.App.Proc. § 121.

We have considered the question of the employer relationship of a special officer detailed to assist private persons in the management of their businesses on several occasions. In City of Hartford v. Parsons, 87 Conn. 412, ...