Palumbo v. George A. Fuller Co.

• Decision Date: 27 July 1923
• Citation: 99 Conn. 353,122 A. 63
• Court: Connecticut Supreme Court
• Parties: PALUMBO v. GEORGE A. FULLER CO. ET AL.

122 A. 63

99 Conn. 353

PALUMBO v. GEORGE A. FULLER CO. ET AL.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Proceedings under the Workmen's Compensation Act by Carlo Palumbo against the George A. Fuller Company and others. From an award for claimant, defendants appeal. Appeal dismissed, and award affirmed.

Keeler J., dissenting.

Conclusions of commissioners from subordinate facts can be attacked on appeal only because resulting from incorrect application of law to subordinate facts, or from inference illogically drawn therefrom.

Claude H. Voorhees and William B. Gumbart, both of New Haven, for appellant Fuller Co.

Philip Pond and Raymond E. Baldwin, both of New Haven, for appellant Sperry Engineering Co.

Arthur B. O'Keefe, Joseph I. Shrebnik, and John Henry Sheehan all of New Haven, for appellee.

CURTIS, J.

This is an appeal to the superior court from the finding and award of a Compensation Commissioner. The appeal involves claimed errors of the Commissioner in denying motions to correct the finding and claimed errors of law in his conclusions.

In the superior court the parties agreed to a reservation of the case, and the court consented, and then under section 75, p. 258, of the practice book, the court passed upon the claimed errors of the Commissioner in denying the motion to correct the finding. Thereupon a reservation of the other questions of law involved was perfected, and the defendants appealed from the rulings of the superior court upon the motions to correct the finding.

It is desirable in the first instance to dispose of the questions relating to the corrections of the finding. It seems necessary for us to consider again the function performed by the superior court and this court in relation to correcting a Commissioner's finding. The Commissioner is the trior of the facts, and his finding is of the same import as the finding of a trial judge. Swanson v. Latham et al., 92 Conn. 87, 101 A. 492. " Settling the credit of witnesses; weighing evidence; ascertaining the truth from conflicting testimony or incongruous evidential facts is within the exclusive jurisdiction" of the Commissioner. His finding, in so far as it discloses facts so determined which we designate subordinate facts, cannot be changed, unless the record discloses that the finding includes matters found to be facts without evidence, or fails to include material facts which are admitted or undisputed facts. Nolan, Adm'r, v. N. Y., N.H. & H. R. R., 70 Conn. 159, 39 A. 115, 43 L.R.A. 305; Hine v. McNerney, 97 Conn. 308, 116 A. 610.

In addition to the subordinate facts set forth in a finding, there are ordinarily certain conclusions drawn from the subordinate facts. These may be arrived at by the application of the law to certain subordinate facts, or by inferences of the ultimate fact drawn from certain subordinate facts by process of reasoning. As to a conclusion of the first kind, if the law is incorrectly applied to the subordinate facts, the trior has committed a reviewable error of law, as when some one or more of the facts found are legally inconsistent with a conclusion reached. Kugel v. Angell, 74 Conn. 550, 51 A. 533; Nolan, Adm'r, v. N. Y., N.H. & H. R. R., 70 Conn. 176, 39 A. 115, 43 L.R.A. 305.

As to a conclusion of ultimate fact drawn from subordinate facts by process of reasoning, there is a reviewable error of law, when it appears that, in drawing its conclusion from subordinate facts, the trior has violated some plain rules of reason, and the conclusion is therefore illogically drawn. Hyde, Adm'r, v. Mendel et al., 75 Conn. 143, 52 A. 744; Hayward v. Plant, 98 Conn. 379, 388, 119 A. 341.

In dealing with the correction of a finding by seeking the exclusion from it of a fact because it was found without evidence, or the insertion in it of a material fact as an admitted or undisputed fact, we are dealing purely with subordinate facts.

The conclusions of the trior drawn from subordinate facts cannot be attacked by seeking to have them stricken from the finding or changed in form of statement. They must be attacked as reviewable errors in law, either because resulting from an incorrect application of law to subordinate facts, or because resulting from an inference illogically drawn from subordinate facts. Kugel v. Angell, supra. Hyde, Adm'r, v. Mendel et al., supra.

When a conclusion of a trior, drawn from subordinate facts, is attacked on the ground that it was an error in law to draw such conclusion, and this ground of error is sustained, the conclusion is no longer in the case, and if it was an essential basis of the judgment, the judgment cannot stand.

It follows, therefore, that the finding of a Commissioner cannot be corrected by striking out or adding paragraphs, unless the record discloses that he has found facts without evidence or failed to include material facts which were admitted or undisputed; and, further, that his conclusions drawn from the subordinate facts must be attacked as errors in law, and not by the method employed in seeking corrections of the finding as to subordinate facts. His conclusions so drawn cannot be found to be erroneous in law, unless found to have been drawn as a result of an incorrect application of some rule or principle of law to subordinate facts, or because of an inference illogically drawn from subordinate facts.

The corrections sought as to paragraphs 14, 16, 19, 36, and 44 are corrections of what are clearly conclusions by the Commissioner from subordinate facts. As stated above, such conclusions cannot be attacked by seeking to have them stricken from the finding or changed in form; they must be attacked as claimed reviewable errors of law for reasons above stated.

The conclusions of the Commissioner found in these five paragraphs have been sufficiently assigned as errors of law in the appeal, and will be discussed later from that standpoint.

The court properly denied the motion to correct paragraph 43 of the finding, as its correction as sought is immaterial. There is therefore no ground for further correction of the finding by this court and no error on the appeal.

A ground of appeal that is fundamental is the claim that the Commissioner erred in not holding that section 5345 (in margin)^[1] is unconstitutional; as this question is independent of the finding, it may be considered at the outset.

This section passed in 1913 is made a part of part B of the Compensation Act to strengthen its remedial purpose. It in effect provides an addition to the definition of employer and employee found in the original act. Under it a principal employer in an undertaking becomes, in reference to the Compensation Act, the employer of all employees on the work who come within the terms of the section.

When a principal employer (contractor) undertakes a piece of work in this state and voluntarily accepts part B of the Compensation Act, he makes the act, including section 5345, a part of his undertaking, and his employees in relation to the Compensation Act, include those who come within the terms of This section. Douthwright v. Champlin, 91 Conn. 524, 100 A. 97, Ann.Cas. 1917E, 512.

The acceptance of part B of the act is voluntary on the part of an employer. When he so accepts the act, he cannot thereafter urge that its provisions are ineffective in whole or in part because of any impairment of the constitutional rights of an employer. This reason of appeal cannot be sustained.

The finding and necessary inferences therefrom disclose the following situation: In April, 1921, the Knights of Columbus, a fraternal and social organization, owned a lot of land in New Haven, and it contracted with the defendant, the George A. Fuller Company, hereinafter called the Fuller Company, to erect a certain building upon it for its use. This contract involved an excavation for a cellar, and the erection of the building over it. The excavation for a cellar involved both making an opening and removing the materials therefrom, which materials had to be removed from the premises. The Fuller Company entered into a contract with the defendant the Sperry Engineering Company, hereafter called the Sperry Company, under which the Sperry Company agreed to excavate the cellar and remove the materials. On April 6, 1921, the Sperry Company began the preparatory work of excavating and moved a steam shovel on the premises.

One Joseph Barone, about April 6, 1921, arranged with the Sperry Company that one George A. Cromie, for whom he was agent, should remove the loam within the space to be occupied by the cellar and take it from the premises. This loam was of substantial value, and for doing this work Cromie was to receive as consideration the loam itself. Cromie agreed to pay and did pay the Sperry Company for the use of its steam shovel to such extent as he used it in removing the loam. Cromie did the work of removing loam for the most part by laborers using shovels and carts. One of the laborers of Cromie, engaged in digging the loam and throwing it into carts, was the plaintiff. The Sperry Company complained that Cromie did not cut the loam deep enough, and Cromie complained that the steam shovel cut too deep and took loam mixed with other material. Cromie dug and carted loam from the premises up to and including April 11, 1921. Cromie did not remove or take away all of the loam on said premises, nor did the Sperry Company demand or require him to remove it all, and the loam on the premises, not taken away by Cromie, was disposed of by the Sperry Company in other ways as it chose.

While the laborers of Cromie were at work on April 11, 1921, as above stated, the Sperry Company was removing other material than loam...