Pascoal v. Mortenson

• Decision Date: 02 March 1929
• Court: Connecticut Supreme Court
• Parties: PASCOAL ET AL. v. MORTENSON ET AL.

145 A. 149

109 Conn. 39

PASCOAL ET AL. v. MORTENSON ET AL.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Hartford County; Arthur F. Ells, Judge.

Proceedings under the Workmen's Compensation Act by Alexandrina Fernandez Pascoal and others, opposed by Chris Mortenson Oscar L. Johnson, and others. Finding and award of the compensation commissioner were in claimant's favor. On appeal to the superior court and trial to the court, judgment was entered for claimant sustaining the commissioner's award, and respondent last named and his insurer appeal. No error.

George E. Beers, of New Haven, and Edward C Carroll, of Hartford, for appellants Johnson and Standard Accident Ins. Co.

Ralph O. Wells, of Hartford, for defendants appellees Mortenson and Fidelity & Casualty Co. of New York.

Frank Covello, Victor De Nezzo, and Francis A. Pallotti, all of Hartford, for plaintiffs appellees.

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

HAINES, J.

The appellant respondent Oscar L. Johnson as a general contractor had a contract to build a house in West Hartford for a client covering the entire job and including necessary plumbing and sewer connections. He was subject to the provisions of part B of chapter 284 of the General Statutes, as amended, and had insured his compensation liability with the Standard Accident Insurance Company. Another of the respondents, Chris Mortenson, took a subcontract from Johnson for certain work on the latter's contract, which subcontract involved the digging of a trench for the sewer connection of the house. Mortenson was also subject to part B of chapter 284 of the General Statutes, and his liability thereunder was insured with the Fidelity & Casualty Company. While the claimant's decedent was employed in digging the trench it caved in, causing him injuries from which he died the same day. The commissioner held that the decedent died of a personal injury arising out of and in the course of his employment, and that he was an employee of both Johnson, the principal contractor, and Mortenson, the subcontractor, and awarded compensation to the claimant, dependent widow of the decedent, payable by them and their respective insurers.

The commissioner attached to his finding a memorandum of decision in which, among other things, he said: " While I agree that perhaps the more convenient way would be to make each of the employers herein, through his insurer, pay 50% of the award, in making an award of that kind I feel that I am depriving the claimant of a certain protection in the collection of her claim. * * * In making the award against the employers jointly the claimant has two strings to her bow. * * *" Both Johnson and Mortenson appealed; the former claiming that, upon the facts of the case, he did not incur the liability as principal contractor, which is imposed by General Statutes, § 5435, and that on the facts found by the commissioner no award should have been made against him, and the latter claiming that the award should have been several, 50 per cent. against each contractor, instead of a full award against them jointly.

The superior court held that the case came within the provisions of General Statutes, § 5345, and that the award for the full amount against the contractors jointly was properly made, but held that the superior court could not upon that appeal decide the respective liabilities of the contractors as between themselves.

The respondent Johnson and his insurer only have appealed from this decision; the main contention disclosed in the reasons of appeal being that the award of the commissioner was erroneous because it did not determine the " ultimate liability" as between the contractors themselves and because it held both contractors " primarily liable," and, further, that no award should have been made against Johnson, the principal contractor, and, finally, that the superior court had jurisdiction upon the appeal to determine the " ultimate liability" of the contractors as between themselves. The comprehensive character of the appeal has been somewhat reduced upon the appellant's brief and argument; the latter stating: " The only question involved is as to the respective relations to the liability of the two sets of respondents." Nowhere in the brief or argument do we discover a claim that the respondent Johnson is without liability in this case. On the contrary, the claim seems to be only that, while both contractors may be primarily responsible to the claimant, yet, as between themselves, the immediate employer, Mortenson, should bear the initial obligation to pay the award, and the principal contractor, Johnson, should only be responsible as surety in the event that Mortenson does not pay, and that it is urged that the commissioner should have thus defined the mutual responsibilities in his award, and, the superior court having declined to so order, that this court should now do so.

The brief and argument in behalf of the respondent Mortenson, on the other hand, is confined to the claim that the case comes within the terms of General Statutes, § 5345, stating the " fundamental" issue to be whether the principal contractor is "...