McDonald v. City of New Haven

• Decision Date: 05 March 1920
• Citation: 94 Conn. 403,109 A. 176
• Court: Connecticut Supreme Court
• Parties: McDONALD v. CITY OF NEW HAVEN.

109 A. 176

94 Conn. 403

McDONALD v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

March 5, 1920

Case Reserved from Superior Court, New Haven County; Donald T Warner, Judge.

Proceedings under the Workmen's Compensation Act by Mary E. Reynolds McDonald, for compensation for the death of her husband opposed by the city of New Haven. The compensation commissioner dismissed the claim, and on appeal to the superior court the case was reserved for the consideration of the Supreme Court of Errors. Superior court advised to affirm action of commissioner and dismiss appeal.

Arthur B. O'Keefe, of New Haven, for plaintiff.

William L. Bennett and Thomas R. Robinson, both of New Haven for defendant.

GAGER J.

McDonald, the deceased husband of the claimant, was a fireman regularly appointed under the provisions of the Charter of the city of New Haven, as a member of its fire department. While discharging his duties in endeavoring to extinguish a fire he received a sudden drenching with water, and this drenching arose out of and in the course of the discharge of his duties as fireman. The drenching so received caused lobar pneumonia, and from this disease McDonald died 11 days after the drenching. McDonald's surviving wife makes claim under the Compensation Act (Gen. St. 1918, § § 5339-5414) against the city as a dependent of the deceased. The commissioner held that the lobar pneumonia, arising from the drenching and resulting in the death, constituted an injury within the meaning of the act, but that McDonald was not an employé of the city within the meaning of the act.

Our Workmen's Compensation Act applies only in situations where the persons are in the " mutual relation of employer and employé ." Gen. Stats. § 5341. " Employer" is defined by the statute to mean " Any person, corporation, firm, partnership or joint stock association, the state and any public corporation within the state using the services of another for pay." " Employé" is defined as meaning-

" Any person who has entered into or works under any contract of service or apprenticeship with an employer." Gen. Stats. § 5388.

The first question arising upon the appeal is whether a regularly appointed member of the city fire department is an employé of the city. By taking the position of a fireman, did he enter into or work under any contract of service with the city as his employer? The act in terms requires a contract relationship of employer and employé , and its privileges as well as duties are limited to those sustaining such legal relationship. Workmen's compensation in the legal sense is a creation of the statute, and courts have no power to extend its provisions to cases not fairly within the scope of the given act. If the given act is broader or narrower than what a sound public policy requires, the remedy lies with the Legislature. The Compensation Acts of the various states are by no means uniform in designating those entitled to compensation. For illustration: The act in Massachusetts provides that cities and towns may pay compensation to such laborers, workmen, and mechanics employed by them as receive injuries, etc. Under this act it was held that a hoseman, a member of the fire department, a permanent fire force, stationed at an engine house, was not a laborer, workman, or mechanic, and that these words were to be taken in their ordinary lexical sense, which excluded the trained and disciplined force comprising the Boston fire department. This case was decided upon the limitation as to kind of work done, and this act is narrower in its scope than our act, which is based upon contract relationship alone. In Minnesota, on the other hand, both policemen and firemen are entitled to the benefits of the compensation law under a statute which provides that employés and workmen shall be construed to mean, among other things, every person in the service of the city, under any appointment or contract for hire. State ex rel. Duluth v. District Court, etc., 134 Minn. 28, 158 N.W. 791, Ann. Cas. 1918B, 635. In Michigan the statute (Pub. Acts [Ex. Sess.] 1912, No. 10, § 7, pt. 1) excepts from its operation " any official of the state, or of any county, city, township, incorporated village or school district." Under this statute it was held that a policeman was an officer and not an employé . In this case the only provision for the appointment of policemen was that authorizing the commissioners to engage such employés as might be necessary. Blynn v. City of Pontiac, 185 Mich. 35, 151 N.W. 681. These cases, based on different provisions, emphasize the necessity of confining our attention to the language of our own act which, unlike those above referred to, makes the one and only test " mutual relation of employer and employé ."

It is to be observed that the statutory definition of the word " employé " as used in the Compensation Act is narrower in its scope than the general lexical definition. To " employ" is " to engage for or keep for or in service or duty; procure or retain the services of." The synonyms are " hire; use." " Employé" is " a person who is employed; one who works for wages or a salary; one who is engaged in the service of or is employed by another." Standard Dictionary, words " employ," " employé ." In this broad sense it may be conceded that a fireman is an employé of the city through its fire department; that is, he is in the service of the city under the provisions of the Charter, with the duty of suppressing fires, for a compensation. But our statute is founded upon the theory of a contract of service existing between employé and employer. " There must be a real contract of employment, either express or implied, or there is no ‘ employé ’ within the definition and meaning of the statute." Sibley v. State, 89 Conn. 687, 96 A. 161, L.R.A. 1916C, 1087. It is apparent then that, although the statutory definition of employer as including " the state and any public corporation within the state using the services of another for pay" is broad enough to include a municipal corporation, yet the definition of employé as one whose services are secured as a result of a contract, express or implied, restricts the liability of the state or a public corporation to cases where it has secured the services of another by contract alone. It is not necessarily the character of the service undertaken, but rather how the service is secured by the municipal corporation, which determines whether the person injured is within the terms of our act.

The source of the power of New Haven, both as to the organization of police and fire departments, is contained in its Charter, in form a public act. It is therefore necessary to look to the language of the Charter to determine the nature of the relation between the members of the fire department and the city. The Charter provides for a substantially similar organization of the police department and the fire department, and some aid may be gained by making this comparison. Each department is under the control of a board of commissioners. The members of each department are appointed. In the police department all appointments and promotions, except the chief, are made by the board in accordance with the rules of the Civil Service Board. Charter, § 47, as amended April 9, 1901, and May 22, 1907. The board fixes the pay or compensation of all members of the department except the chief. Charter, § 50. In the same way in the fire department all appointments and promotions except the chief are made by the board in accordance with the rules of the civil service board. Section 55 as amended July 19, 1905, and September 12, 1911. And the compensation of the officers and employés of said departments, except the chief, is determined by the board. Section 55. Then there are certain provisions common to both departments. By section 59 the board of each department " shall have power to prescribe and define the duties of the members of such department and to make all rules necessary for the proper government thereof and the appointment of officers and employé s." By section 60 the chief of each department " shall assign to duty all the members of his department, making such changes from time to time as in his judgment the efficiency of his department may require. He shall have power to suspend without pay any member of the regular force (under certain regulations not now material)." Section 64 provides that-

" Each of said boards of commissioners shall have sole power of appointment and promotion of all officers and employés of their respective departments under such rules and regulations as they may adopt for the purpose except where otherwise provided."

By section 65:

" Each of said boards of commissioners shall have power for cause, after a hearing on charges made in writing, to remove, reduce in rank or suspend without pay any officer or employé in its department that it has power to appoint. *** Any officer or employé dismissed may make his application to any judge of the superior court within and for New Haven county in the nature of an appeal from such order of the board of commissioners," upon certain proceedings stated.

Under section 66 as amended May 3, 1901, a policeman's relief fund and a fireman's relief fund are established. By subsections 5 and 6 of section 66 2 per cent per annum on the salaries of members of the respective departments is assessed for the benefit of their respective funds. Section 69 provides that the respective boards, with the mayor's approval, " may permanently retire any member of the department who, while in actual performance of duty and by reason of the performance of such duty and without fault and misconduct on his part, shall have become permanently disabled physically or...