Stier v. City of Derby

• Citation: 174 A. 332,119 Conn. 44
• Court: Supreme Court of Connecticut
• Decision Date: 27 July 1934
• Parties: STIER v. CITY OF DERBY et al.

174 A. 332

119 Conn. 44

STIER v. CITY OF DERBY et al.

Supreme Court of Errors of Connecticut.

July 27, 1934

Appeal from Superior Court, New Haven County; John A. Cornell Judge.

Proceeding under the Workmen's Compensation Act by Mary C. Stier administratrix of the estate of William Stier, claimant opposed by the City of Derby and the Derby Gas & Electric Company. The Compensation Commissioner for the Fifth Congressional District made a finding and award in favor of claimant. From a judgment of the superior court for the claimant and dismissing the appeal from the finding and award of the Compensation Commissioner, the Derby Gas & Electric Company appeals.

No error.

J. Warren Upson, of Waterbury, for appellant.

William F. Healey, of Derby, and Edward S. Pomeranz and George Miske, both of Hartford, for appellee plaintiff.

Harold K. Watrous and Daniel G. Campion, both of Hartford, for appellee City of Derby.

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

AVERY Judge.

On June 14, 1931, William Stier, who was regularly employed by the Derby Gas & Electric Company as a street foreman and also employed by the city of Derby as a supernumerary policeman, received a telephone call while at his house from the chief of police of Derby that a man had been drowned in the Housatonic river near the power house, and to go there to render assistance. He proceeded in great haste and excitement to the plant of the Derby Gas & Electric Company, obtained an inhalator, and drove rapidly in a police car to the scene of the drowning. Soon after arriving at the scene, he was observed to be sick and was driven back to his home in Derby, and died upon arrival there. Upon the ground that the excitement and extraordinary physical exertion of the decedent was a contributing cause of his death, compensation was awarded by the commissioner to the claimant, his widow, against the Derby Gas & Electric Company as his employer, and her claim for compensation against the city of Derby was dismissed. From the finding and award, an appeal was taken by the respondent Derby Gas & Electric Company to the superior court, where judgment was entered dismissing the appeal, and the respondent has appealed to this court, its claims being: First, that the deceased did not receive a personal injury arising out of and in the course of his employment; second, that he was not an employee of the Derby Gas & Electric Company at the time of the occurrence in question; and, third, that the compensation ought to be apportioned, in that the decedent had a pre-existing heart condition aggravated by his employment.

The facts in detail found by the commissioner, with such corrections as the appellant is entitled to, are as follows: The decedent was employed by the Derby Gas & Electric Company as foreman of its street department; and was also employed by the city of Derby as a supernumerary policeman and paid by it for such time as he spent in its service. In connection with its business, the company owned an inhalator, weighing some seventy pounds, which was kept in the service building of its plant. For a period of years, it had advertised that it would provide this apparatus for public use to be called upon whenever emergencies arose requiring it. It was the only one in town and, when needed to resuscitate persons overcome by gas or drowning, was loaned out by the respondent, but only when an attendant in its employ went with it. The deceased was one of the men trained in its use. Mr. Sullivan, another employee, and himself were its most efficient operators. The deceased had a key to the building where it was kept and a telephone was installed in his home, paid for by the respondent, so that he could be called upon in an emergency. Even though he might be off duty from the street department work, he was required to be within call twenty-four hours of the day as an employee of the respondent to operate the inhalator, a duty which he was expected and obliged to perform on behalf of the Gas Company. The police department of the city of Derby had been notified, in case of accident, to communicate with employees of the company, familiar with the use of this instrument.

On June 14, 1931, which was Sunday, at about 4 p. m., the decedent had just returned to his home from a ball game which he had attended with Mr. Sullivan. It was nearly time for him to go on duty as a special policeman and he wished to get ready. While at his house, he received a telephone call from the chief of police that there had been a drowning up the Housatonic river near the power house, and they wished him to go there, as they had tried to get Sullivan and had been unable to reach him. The decedent rushed out of the house to his garage, hurriedly backed his car out, and drove at a fast rate of speed to the ball park where he had left Sullivan. After finding him and another employee of the respondent, named Dempsey, they drove to the office of the Gas Company where Sullivan and Dempsey got out. The decedent then drove hurriedly to the police station, where he changed to a faster car containing a siren, then returned to the Gas Company office. Sullivan and Dempsey placed the inhalator, bottles, and blankets in the police car, and the decedent drove off rapidly up the river toward the power house. He was visibly excited over the whole affair. All the way up he drove the car as rapidly as the traffic would permit, continually using the siren. Just as the car passed the recreation swimming camp about a mile from the office of the Gas Company, he complained of a pain in his chest, and again before reaching the new dam.

When they reached the bridge at the power house, a young man in a bathing suit jumped on the running board of the car and said he would show them the place of the drowning. They crossed over the bridge and went up the road about a mile. As they reached the supposed locality of the drowning, the Echo Hose Company of Shelton, which also had an inhalator, arrived just behind them. Some one called out that the place of the drowning was about one hundred and fifty feet further on, and when the decedent and his companions reached the spot located by the young man in the bathing suit, the decedent jumped out of the car, rushed around and seized the inhalator, suddenly lifted it out, and started to run down one of the paths toward the river, when Sullivan called to him that the men from the Echo Hose Company had taken their machine and told him not to take the inhalator but to take the blankets and bottles. The decedent then started back up the hill towards the car. When he returned to it, he was pale and excited. He got out of the car and asked a woman in a nearby cottage for a drink of water and then walked towards an outhouse. After a few minutes Sullivan, becoming alarmed, walked to the place where he had disappeared and found the decedent leaning against the building trying to vomit, and assisted him back into the automobile. Sullivan then took the wheel and drove to South-bury and there stopped for some baking soda, which was dissolved in water and taken by the decedent who, at this time, was complaining of pain in his chest. Sullivan became alarmed at the appearance of the decedent, noted that he was pale and that his forehead was covered with sweat. He drove him back to Derby to his home and steps were taken to obtain a doctor, but before the doctor arrived the decedent was dead.

The commissioner found that his death was due to thrombosis or occlusion of the...