Pettiti v. T.J. Pardy Const. Co.
| Decision Date | 30 July 1925 |
| Citation | 130 A. 70,103 Conn. 101 |
| Court | Connecticut Supreme Court |
| Parties | PETTITI v. T. J. PARDY CONST. CO. ET AL. |
Appeal from Superior Court, Fairfield County; John W. Banks, Judge.
J. Dwight Dana, of New Haven, for appellants.
Samuel Reich, of Bridgeport, for appellee.
Argued before WHEELER, C.J., and BEACH, CURTIS, KELLER, and MALT BIE, JJ.
The superior court reserved for our advice the appeal from the compensation commissioner of the Fifth district upon the finding of facts made by the commissioner as follows:
The Pardy Construction Company is a general building contractor, having its principal office in Bridgeport and doing business in Connecticut and in other states. Early in 1924 it secured the contract for the building of a parochial school in Webster, Mass., and started this work in March, 1924. It, in Bridgeport, gave plaintiff the option of working on this job at an increase of 20 cents an hour over his ordinary pay of 70 cents. He accepted, in Bridgeport, and worked on the job as foreman of the laborers from the beginning of the job to the early part of August, when he had a difference with the superintendent who told him to get off the job. This he did, and returned to Bridgeport. The superintendent laid him off temporarily as a disciplinary measure, but did not discharge him. Within an hour or two after Pettiti left the job, the superintendent made an effort to get him back. Within two or three days Pettiti got a fellow employee to intercede with the superintendent to take him back, which the superintendent did, with the understanding that he would obey orders in the future. Pettiti continued to work until his death. When the weather became cold, the superintendant made an arrangement with him to look after the boilers and keep the fires burning, for which he was to receive extra pay. While taking care of the furnace fires, he met with an accident as a result of which he subsequently died. The defendant employer carried compensation insurance on its employees in Connecticut with the Employers' Liability Assurance Corporation, and on its employees in Massachusetts with the Massachusetts Bonding & Insurance Company.
The commissioner found that the accident which resulted in Pettiti's death arose out of and in the course of his employment, and adjudged that respondents pay the claimant a stated award. The finding comprises both the finding of facts and a memorandum of opinion. This violates our repeated instruction. The finding and award should conform to the finding of facts tried to the court in an appeal from a superior court judgment. It should contain the recital of facts found, the conclusions reached by the commissioner upon these subordinate facts, the claims of law made by the appellant, the rulings made thereon, and the judgment rendered. The commissioner may also file a memorandum containing the reasons for his conclusions and judgment.
The appeal is based upon three grounds. We take them up in the order of appellant's brief:
Claim 1. The contract of employment in the course of which Pettiti was injured was made in Massachusetts since his original contract to work on the Webster job was terminated in August, 1924, and five days later he was re-employed under a new contract of employment, which was made in Massachusetts. The claim is predicated upon the fact that Pettiti was discharged in August. The finding is that he was temporarily laid off--that is, suspended--as a disciplinary measure by the superintendent, and as the finding clearly shows with the intention of continuing him in his work on the job. The claim is further predicated upon the fact that the new contract was made in Massachusetts. That is an assumption which the record does not sustain. If there was a new contract, it was not completed until its acceptance by Pettiti, and that was given in Bridgeport. There was no new contract made in August; the contract temporarily suspended was continued.
Claim 2. The employment of tending the boilers was a new contract, and independant of Pettiti's contract as foreman of the laborers, and was made in Massachusetts in the fall of 1924. If this was a new contract, appellant's claim as to the place of its making necessarily follows. It cannot be held to be a new contract. There was only one contract of employment, and a change of the work done, or the compensation paid the employee, would not change the relation existing between this employer and employee. The doing of aditional work for increased pay was an incident of the contract of employment. To hold otherwise might, in some cases, where the day's work was distributed among several lines of work, create as many different contracts of employment, and with every new piece of work outside the particular work for which the employee was employed a new contract would be formed. The work done at one time would be under the Connecticut Compensation Act (Gen. St. 1918, § § 5339-5414), while, just succeeding its performance, the next work done would be under another state Compensation Act. The result would be a situation intolerable to both employer and employee. Neither employer nor employee intended the formation of a new contract with each change in the character of the work. The commissioner has found that Pettiti was hired to take orders from the superintendent, and pursuant to this he was ordered to take care of the boilers. The work done upon the boilers, in view of this finding, may well be held to fairly come within the original contract of employment.
Claim 3. The Connecticut Workmen's Compensation Act does not apply, because the contract of employment was made with distinct and sole reference to employment in Massachusetts. The contract of employment with Pettiti was made in Connecticut, with the specific and sole subject of that contract being performed in Massachusetts. The facts found are identical with those in Banks v. Howlett Co. et al, 92 Conn. 368, 102 A. 822. There the contract of employment was made in New York, but having sole and specific reference to a job to be performed in Connecticut, and we held that an employee injured while at work here came within the operation of our act. It is apparent that, if we sustain the award in this case, we must overrule Banks v. Howlett Co. et al., supra. The claims made in this case make it necessary to re-examine the ground of that case.
We held in Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372, L.R.A. 1916A, 436, that, where the parties to a contract of employment had by their express or...
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