Taylor v. M.A. Gammino Const. Co.

Decision Date07 February 1941
Citation18 A.2d 400,127 Conn. 528
CourtConnecticut Supreme Court
PartiesTAYLOR v. M. A. GAMMINO CONST. CO. et al.

Appeal from Superior Court, Hartford County; John H. King, Judge.

Proceedings under the Workmen's Compensation Act by George Taylor against M. A. Gammino Construction Company and others. From a judgment of the superior court dismissing an appeal from, and affirming an award of, the compensation commissioner for the first district in favor of the plaintiff, the defendants appeal.

No error.

Harold K. Watrous and Eugene A. Massey, both of Hartford, for appellants.

Henry J. Goldberg and John Joy, both of Hartford (Jacob Sehwolsky of Hartford, on the brief), for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS and ELLS JJ.

ELLS, Judge.

The plaintiff, a boss carpenter with the rating of assistant superintendent, had worked on a job in East Hartford until 3 o'clock in the morning because of an emergency. He asked his boss how he was to get to his home in Hartford, and was given permission to use a pick-up truck belonging to the employer. The emergency continued, and on the following day he worked until the early morning hours. He assumed because of what happened the day before that it was agreeable to the employer that he again go home in one of the pick-up trucks. He took one, and while driving directly home, at about 4 o'clock in the morning was involved in a collision, and injured. An eight-week incapacity to work resulted. The commissioner concluded that at the time of his injury he was reasonably fulfilling the duties of his employment and that the accident arose out of and in the course thereof.

The defendants' motion to correct the finding in several vital respects was denied, and this refusal by the commissioner and by the Superior Court is the first reason of appeal. The corrections sought would cause the finding to state that no permission was given on the night of the accident, that the boss had no authority to give permission and that it was the rule of the defendants that the pick-up truck was not to be used by employees for transportation home. It is well established that upon an appeal to the Superior Court from a finding and award of a compensation commissioner the court cannot retry the facts. " The court cannot review conclusions of fact made by a commissioner which merely concern the weight of evidence and the credibility of witnesses. * * * The foundation underlying the power which the superior court exercises in correcting the finding of a commissioner is its right to correct the finding when it is ‘ so unreasonable as to justify judicial interference." Fiengo v E. Vitale, Inc., 125 Conn. 559, 562, 563, 7 A.2d 385, 386, and cases there cited. The evidence discloses nothing to indicate that the plaintiff admitted any of the claimed facts which the defendants sought to add, nor that any facts were found without evidence. The defendants' superintendent testified that on the first night he told the plaintiff he could use the pick-up, because he knew he would be working until late in the morning. He did not recall that the plaintiff asked permission the second night. The plaintiff thought he did expressly ask permission on the night of the accident. The superintendent testified that the pick-up was on the job to be used for the advantage of the job. ‘ Every one takes it as long as it is for the job.’ He was asked the following question: ‘ And if he did not stay there because of no way of getting home it would be part of the job-for the interest of the job to let him have a pick-up?’ His answer was: ‘ Well under those conditions I would say yes under those emergency conditions.’ It is apparent that the defendants have no cause to complain of the finding.

The major issue on the appeal concerns the conclusion that the accident arose out of and in the course of the employment. The rights to compensation of persons injured on public highways while going to and from work have been considered by us in numerous cases. From them can be deduced the principles of law applicable to the present case. An employer may by his dealing with an employee or employees annex to the actual performance of the work, as an incident of the employment the going to or departure from the work; to do this it is not necessary that the employer should authorize the use of a particular means or method, although that element, if present, is important; it is enough if it is one which, from his knowledge of an acquiescence in it, can be held to be reasonably within his contemplation as an incident to the employment, particularly where it is of benefit to him in furthering that employment. Thus in Procaccino v. Horton & Sons, 95 Conn. 408, 111 A. 594, and Corvi v. Stiles & Reynolds Co., 103 Conn. 449, page 453,130 A. 674, the conduct of employees in using a private crossing over a railroad track to go to and from work was held to be annexed to the employment as an incident so that an employee injured by a train could recover, and in the latter the...

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