Parsons v. M.J. Daly & Sons

• Decision Date: 19 January 1932
• Citation: 114 Conn. 143,158 A. 216
• Parties: PARSONS v. M. J. DALY & SONS et al.
• Court: Connecticut Supreme Court

158 A. 216

114 Conn. 143

PARSONS v. M. J. DALY & SONS et al.

Supreme Court of Errors of Connecticut.

January 19, 1932

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Proceeding under the Workmen's Compensation Act by Hattie M. Parsons for the death of her husband, opposed by M. J. Daly & Sons the Shipley Construction & Supply Company of New York, R. V Worden & Sons, Incorporated, and the American Mutual Liability Insurance Company, insurer. A finding and award of the Compensation Commission in favor of claimant was confirmed by the Superior Court on appeal, and M. J. Daly &amp Sons, Shipley Construction & Supply Company, and their insurer appeal.

Error, and cause remanded.

Edward S. Pomeranz, S. Polk Waskowitz, and George Miske, all of Hartford, for appellants M. J. Daly & Sons, Inc., and the Shipley Construction & Supply Co.

Philip Pond and Joseph B. Morse, both of New Haven, for appellees R. F. Worden & Sons, Inc., and Hartford Accident & Indemnity Co.

John T. Monzani, of Waterbury, for appellee Hattie M. Parsons.

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

HAINES, J.

The record discloses that the original claim for compensation was made against M. J. Daly & Sons (herein called the Dalys), the first hearing being held July 25, 1927. The Dalys were represented before the commissioner, as well as their insurer, the American Mutual Liability Insurance Company. Believing that a complete determination of the issues required additional parties, the commissioner summoned in R. V. Worden & Sons, Inc. (herein called the Worden Company), and the Shipley Construction & Supply Company of New York (herein called the Shipley Company), the latter also being insured by the American Mutual Liability Insurance Company, and all parties have since been represented. After various hearings, the commissioner prepared a careful and well arranged finding of facts, and annexed thereto a memorandum of decision and entered an award in due form under date of July 15, 1930, dismissing the claim against the Worden Company and requiring compensation to be paid by the Dalys and the Shipley Company. The delay in reaching a final decision resulted from the belief of the commissioner and of counsel for the claimant that an adjustment of liability would be made between the respondent parties themselves; but all negotiations to that end terminated without result February 10, 1930. In the meantime the Dalys had voluntarily advanced compensation to the claimant. The Dalys and the Shipley Company, with their insurer, filed separate appeals to the superior court, and together moved for a correction of the finding, attaching to their motion various excerpts from the testimony. These appeals were joined by order of the superior court. The claimant, appellee, made no request for the certification of additional evidence; but the Worden Company notified the commissioner in writing that certain other evidence was relevant and material, and filed such additional excerpts with the commissioner for certification.

The excerpts filed by the appellants were not certified by the secretary or stenographer to be correct transcripts; there being a form of certification attached but without the signature of either secretary or stenographer. These excerpts, however, were certified by the commissioner. The additional excerpts filed by the Worden Company were never certified by either the secretary, stenographer, or the commissioner. The commissioner filed a memorandum saying that the ultimate order would be that the entire evidence be certified to the superior court as it should all be before that court; though expressing the opinion that neither the parties nor the state should be put to the expense of printing the entire evidence. It does not appear that such an order was ever entered. Under the circumstances, it not appearing that the entire evidence was certified, it is difficult to understand how the trial court in its memorandum upon the motion to correct could state that it had examined all the evidence and in the light of it hold the excerpts insufficient to justify the motion. The importance of conforming to the procedure which we outlined in Taylor v. St. Paul's Universalist Church, 107 Conn. 248, 140 A. 124, is pointedly illustrated by this record.

It is highly desirable, however, to bring about a determination of this case, which has been delayed for a long time, and a remand would cause further delay and much expense. Furthermore, counsel for the contending parties have argued the case on the basis of the present record, and opposing counsel have waived any objection to these portions of the evidence which have not been certified. Under these circumstances, we have felt justified in taking up the consideration of the claimed corrections of the finding in the light of the evidence printed in the record before us.

The general situation as presented by the finding is that Worden & Sons, Inc., are engaged in bottling and selling milk and cream and manufacturing ice cream; Daly & Sons are pipe and steam-fitters, doing special work and installing or assisting in installing special apparatus at various factories; the deceased, who was the husband of the present claimant, bad been for many years an employee of the Dalys. The Worden Company had bought some refrigerating apparatus from the Shipley Construction Company, and certain pipes and fittings essential in connection with the apparatus were purchased by the Worden Company from the Dalys, and this included one pipe fifteen feet long and six inches in diameter, weighing fifteen hundred pounds, and the deceased and his son, who acted as his helper, were raising this pipe to the roof of the Worden Company's plant when it came in contact with a heavily charged electric wire, causing the death of Parsons.

A careful checking and analysis discloses no real contradictions in the evidence, and it convinces us that some changes must be made in the finding. The evidence shows conclusively that the refrigerating apparatus was bought from the Shipley Company, f. o. b. Waterbury, and the contract contained no provision whatsoever for installation: nor does it appear that there was any oral agreement therefor. It does appear, however, that the Worden Company, after purchasing the apparatus, undertook in its own behalf to install it with the necessary piping for that purpose, and Licbold, its superintendent and vice president, sent for men from both the Shipley Company and the Dalys to do the work for the Worden Company: Styffe being obtained from the Shipley Company, and Parsons, the deceased, and his son from the Dalys. Styffe as an expert was put in charge of the installation by the Worden Company, and Parsons as an expert pipe man was to do whatever Styffe directed. It further appears that Styffe, while at the Worden plant for a number of months on this occasion, did, upon its request, other miscellaneous work for the Worden Company. The entire work was under the general control and direction of Liebold, and was thus being done by men loaned to the Worden Company by the Shipley Company and the Dalys for that purpose. Liebold...