McCulloch v. Pittsburgh Plate Glass Co.

• Decision Date: 12 December 1927
• Citation: 140 A. 114,107 Conn. 164
• Court: Connecticut Supreme Court
• Parties: MCCULLOCH v. PITTSBURGH PLATE GLASS CO. ET AL.

140 A. 114

107 Conn. 164

MCCULLOCH v. PITTSBURGH PLATE GLASS CO. ET AL.

Supreme Court of Errors of Connecticut.

December 12, 1927

Appeal from Superior Court, Fairfield County; John Richards Booth Judge.

Proceeding by Carrie B. McCulloch under the Workmen's Compensation Act, opposed by the Pittsburgh Plate Glass Company and others, to recover compensation for the death of her husband. From a finding and an award of compensation to the claimant by the compensation commissioner, defendants appealed to the superior court. Award vacated, and claimant filed motion to reopen judgment, which was granted. From the order reopening the judgment, defendants appeal. No error.

Maltbie and Haines, JJ., dissenting.

George E. Beers and William L. Beers, both of New Haven, for appellants.

Walter J. Walsh, of New Haven, for appellee.

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

HINMAN, J.

The commissioner's finding discloses that the claimant's decedent, her husband, was employed by the respondent as a traveling salesman; on January 16, 1925, while passing along a public highway in Bridgeport for the purpose of calling on a prospective customer, he slipped on some ice and fell striking the lower part of his back, his head, and his elbows; he was treated by his family physician, returned to work early in February, and continued until March 17th, when he stopped because of headaches and inability to sleep. On March 23d he became partially unconscious, lost his power of speech, and suffered complete weakness in the limbs, and was taken to a hospital where he died, on April 2d, from embolism of the pulmonary artery. The commissioner found that:

" Prior to the accident the deceased had a thrombus [a clot condition stationary in the veins or arteries] which became detached through the accident of January 16th, forming the embolism that caused his death."

Award was made, accordingly, for death resulting from an injury arising out of and in the course of deceased's employment.

The respondents filed a motion to correct the finding in several respects, the most important of which was the expunging of the above-quoted facts as to cause of death, which motion the commissioner denied. The respondents appealed, and certain relatively brief excerpts from the medical evidence were certified and filed. The trial court held that this evidence afforded no support for a finding that the fall was the cause of the pulmonary embolism which resulted in the death granted the motion to correct, and rendered judgment, dated June 3, 1927, sustaining the appeal and vacating the award.

On June 13, 1927, the claimant filed a motion that the judgment be opened, alleging that all the evidence before the commissioner--which was certified and annexed to the motion--abundantly supported the finding as to cause of death, that the claimant had theretofore been financially unable to furnish a copy of the testimony, and that it would be unfair and a miscarriage of justice to finally dispose of the case without a consideration of all the material evidence. The trial court, upon perusal of the evidence so certified, ruled that it contained matters at least requiring a reargument and, on July 8th, opened the judgment. This action of the court is the subject of the first two reasons of appeal.

The opening or vacating of a judgment--at least during the term at which it was rendered, as is the case here--is at the legal discretion of the court. Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755, 54 L.R.A. 758. While, like a new trial under section 5850 of the General Statutes, it " is not to be granted readily, nor without strong reasons," it may and ought to be when there appears cause " for which the court, acting reasonably, would * * * feel bound in duty" to do so. Wildman v Wildman, 72 Conn. 262, 270, 44 A. 224. The motion being addressed to and within the discretion of the court, the exercise of that discretion will not be reviewed unless there appears a clear abuse of legal discretion. Wood v. Holah, 80 Conn. 314, 68 A. 323. The present instance does not afford such an occasion for review.

Moreover, we think that in the superior court, as well as before the commissioner, the general rule which denies a rehearing to a nondiligent litigant is not to be applied in all strictness in compensation cases, but, in the absence of other than technical prejudice to the opposing party, the liberal spirit and policy of the Compensation Act (Pub. Acts 1913, c. 138, as amended) should not be defeated or impaired by a too strict adherence to procedural niceties. Fair v. Hartford Rubber Works Co., 95 Conn. 350, 111 A. 193; Powers v. Hotel Bond Co., 89 Conn. 143, 93 A. 245. No error was committed in opening the judgment.

The decedent was undoubtedly in the course of his employment when he fell upon the highway. The defendant contends, however that the injuries he suffered did not arise out of his employment, error being assigned on the ground that the award as made placed upon the respondents a responsibility for a highway accident due to a hazard common to the community. It has been consistently held in this state that where the employer, by the terms or implications of the contract of employment, has the right to and does require the employee to use the highways more than is common to ordinary persons, the risk and hazards to such employee are, consequently, greater than those that are incident to occasional and casual use, and that injuries sustained during and because of such greater use arise out of as well as in the course of the employment. Harivel v. Hall-Thompson Co., 98 Conn. 753, 756, 120 A. 603; Lake v. Bridgeport...