Thompson v. Twiss

• Decision Date: 19 April 1916
• Citation: 90 Conn. 444,97 A. 328
• Court: Connecticut Supreme Court
• Parties: THOMPSON v. TWISS et al.

97 A. 328

90 Conn. 444

THOMPSON

v. TWISS et al.

Supreme Court of Errors of Connecticut.

April 19, 1916.

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by George M. Thompson against Julius Twiss and others. From a decision and award of the compensation commissioner of the Third district in favor of the claimant, respondents appealed to the superior court, which dismissed the appeal and confirmed the award, and respondents appeal. No error.

Ralph H. Clark, of New Haven, for appellants. James E. Wheeler, of New Haven, for appellee.

WHEELER, J. The respondents, upon the denial of their motion to correct the finding, filed certain exceptions to the finding, and assign these as the first and second grounds of their appeal.

The first ground, that "the court erred in finding the facts set forth in part first of the finding," is general, and not specifically addressed, as it should have been, to such paragraphs of the finding of the commissioner and made a part of the finding of the superior court as the respondents desired to have corrected.

The second ground, that the facts as testified to by a certain witness are true, had no place in the draft finding, which should include only the facts claimed to have been established by the evidence.

The practice upon appeals of this nature is not yet settled. Accordingly we have examined with some care the transcript of the evidence, and we may say that, had the particular parts of the finding whose correction was pressed in argument been properly before us, we could not have held as matter of law that the trial court committed any harmful error of law in refusing to correct the finding of the commissioner. The power of the superior court in the correction of a finding of the compensation commissioner is analogous to, and its method of correcting the finding similar to, the power and method of this court in correcting the finding of the superior court. The finding of the superior court upon an appeal from an award of a commissioner, unless it corrects the finding of the commissioner, should merely in its finding make that finding a part of its record, without refinding the facts or making them the finding of facts for the purpose of appeal. If the trial court corrects the finding, it should indicate in its finding on appeal the corrections so made in the finding of the commissioner.

If the trial court finds no harmful error in the appeal from the commissioner, it should dismiss the appeal. If it finds harmful error, either in a conclusion of law reached, or in a conclusion of fact reached, or in the finding of a material fact or the refusal to find a material fact, it should, if the award may be changed or modified without requiring a further hearing, sustain the appeal to this extent and direct the commissioner to make the award in accordance with its direction. If the award cannot be changed or modified in accordance with the conclusions of the trial court without further hearing upon the facts, it should sustain the appeal, and indicate in the judgment or its memorandum the grounds of its action.

In reality there are two questions of law raised on this appeal which we shall consider in order:

(1) Whether the relation between Mr. Thompson, the claimant, and Mr. Twiss was that of employer and employé within the meaning of the Compensation Act. The respondents' contention that this relationship did not exist is predicated upon their claim that upon the facts found the relationship was that between an independent contractor and his contractee.

(2) Whether the employment of the claimant was casual in its nature.

When the doing of a specific piece of work is intrusted to one who exercises an independent employment and selects his own help and has the immediate control of them, and the right to control the method of conducting the work, the contractor is an independent contractor. Alexander v. Shermans Sons, 86 Conn. 293, 297, 85 Atl. 514; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 525, 28 Atl. 32.

The decisive test is: Who has the right to direct what shall be done and when and how it shall be done? Who has the right to the general control? There are characteristics of a general contractor which are suggestive, but not controlling. He is ordinarily one who carries on an independent employment. His contract relates to a given piece of work and for a given price. He is responsible for the results of his work.

Neither the principle nor its application to the facts of this case are uncertain. Mr. Twiss, for the purpose of developing his land in Westville, engaged Mr. Thompson, the claimant, to do certain work on the land. He furnished him the explosives and most of the tools required. Mr. Thompson kept a team of horses and worked sometimes with his team, and at other times not. For five or six years preceding the date of the injury for which he seeks compensation he had frequently done odd jobs for Mr. Twiss, at times as often as two or three times a week. On the Westville work Mr. Twiss gave him the privilege of getting such help as he needed or taking those the brother of Mr. Twiss would furnish. Mr. Thompson, in fact, hired the men he used on the work. At the end of the week he gave Mr. Twiss the amount of the pay roll, and Mr. Twiss gave him the amount of the wages which he turned over to the men. Part of the time Mr. Thompson used his team on the work, and part not. He was paid by the day at irregular times, being paid more when his team was used. He received nothing in addition to this from this work and no profit on the men's daily wages. On one occasion Mr. Twiss' brother put a man on this job whom Mr. Twiss paid directly.

A few weeks after the Westville job was finished Mr. Twiss and Mr. Thompson arranged for the development of land of Mr. Twiss at Morris Cove upon the understanding that the work was to be done under the same conditions and paid for in the same manner as upon the Westville job. This understanding was carried out. The time of completion of the work was indefinite, for the reason that Mr. Twiss kept adding to the work from time to time. Mr. Thompson employed a Mr. Douglass on a part of this work, and he was paid directly by Mr. Twiss, while the man assisting Douglass was paid by Mr. Thompson in the same manner as the other men. The method of payment adopted by these parties, by the day rather than by the contract, is characteristic of the...