Tortorici v. Sharp Moosop, Inc.
| Decision Date | 12 December 1927 |
| Citation | 107 Conn. 143,139 A. 642 |
| Court | Connecticut Supreme Court |
| Parties | TORTORICI v. SHARP MOOSOP, INC., ET AL. |
Appeal from Superior Court, Fairfield County; John Richards Booth Judge.
Proceeding under the Workmen's Compensation Law by Mary Valerio Tortorici, compensation claimant, for death of her son Michael Valerio, opposed by Sharp Moosop, Inc., the alleged employer, and another, as insurer. Award of the compensation commissioner was affirmed by the superior court, and the appeal from the award dismissed, and the employer and insurer appeal. Error; judgment set aside, with directions to sustain the appeal.
Philip Reich and Samuel Reich, both of Bridgeport, for appellants.
Francis P. Guilfoile and Charles R. Summa, both of Waterbury, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
A controlling question involved in this appeal is whether the deceased was an employee or an independent contractor, and the only correction of the finding which could in any way affect this question is the following, which the plaintiff seeks to have added to the finding:
" The deceased had no regular hours, using his truck on the job as occasion arose."
This clearly suggests that the deceased could work as and when he pleased. The evidence does not fully support that conclusion, and the court did not err in refusing the request for its addition to the finding. Moreover, the finding, if made, would not affect the result, and this is sufficient ground for the denial of the motion. Colt v. Colt, 90 Conn. 658, 660, 98 A. 292; Bristol v. Pitchard, 81 Conn. 452, 454, 71 A. 558.
The finding discloses the following facts bearing on this question: The defendant is engaged in the general trucking business, and at the time of the injury was working on a contract at Wilton, Conn., carrying materials and mixers used in the construction of a state highway. He used a number of trucks of his own, and hired a number of others, paying a stated price per hour for the latter with a driver. The deceased was working under an agreement for the use of a truck owned by him which he himself drove on this day of the injury. He was directed by the defendant's foreman what material to carry on his truck and where to carry it, and if the work was not done satisfactorily the foreman had authority to " discharge" the deceased. He was paid only for actual time that the truck was used, while the defendant's own truck drivers were paid a stipulated weekly wage whether they worked or not. They were on the defendant's pay roll and the deceased was not. Payments to the deceased were made biweekly, after deducting such amounts as the defendant may have expended for oil, gas, parts, or repairs on the truck. The deceased could drive his truck himself or hire another man to do so, and the defendant had no voice in the selection of such driver, the latter thus being responsible only to the deceased, from whom his compensation would come. The deceased had the privilege of using his truck on other jobs when it was not in use on the work of the defendant.
" ‘ Employee’ shall mean any person who has entered into or works under any contract for services or apprenticeship with an employer." " ‘ Employer’ shall mean any person, corporation, firm, partnership, * * * using the services of another for pay. * * *" General Statutes, § 5388, as amended; Public Acts of 1919, c. 142, § 18; Public Acts of 1921, c. 306, § 11; Public Acts of 1927, c. 307, § 7.
The distinction between an employee and an independent contractor has been variously illustrated in a considerable number of cases before this court. It is comprehended in the brief statement that one is an employee if the employer has the right to direct what work shall be done and when and how it shall be done, or, in other words, has the general control over what work shall be done and how. The independent contractor contracts to produce a given result by methods under his own control, while the employee contracts to produce a given result, subject to the lawful orders and control of the employer in the means and methods used; these point in some degree to the duty of service to the employer. The following are illustrative cases: Higley v Woodford, 106 Conn. 284, 285, 137 A. 755; Crane v. Peach Bros., 106 Conn. 110, 137 A. 15; Morganelli v. Derby, 105 Conn. 545, 551, 135...
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Darling v. Burrone Bros., Inc.
...the defendant to dig the ditch to the proper depth, locate it properly and avert damage to the existing lateral. Tortorici v. Sharp Moosop, Inc., 107 Conn. 143, 147, 139 A. 642. That the plaintiff and Mansolf were employees of Anderson-Wilcox, Inc., worked in the ditch and assisted the defe......
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United States Fid. & Guar. Co. v. Spring Brook Farm Dairy Inc.
...means and methods by which that result is to be accomplished, he is not an employee within the Compensation Act. Tortorici v. Sharp Moosop, Inc., 107 Conn. 143, 146, 139 A. 642; Francis v. Franklin Cafeteria, 123 Conn. 320, 323, 195 A. 198; Cumbo v. E. B. McGurk, Inc., 124 Conn. 433, 435, 2......
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...what work shall be done and how.'" Cumbo v. E.B. McGurk, 124 Conn. 433, 435, 200 A. 328, 329 (1938) (quoting Tortorici v. Moosop, Inc., 107 Conn. 143, 146, 139 A. 642 (1927)). As Judge T.F. Gilroy Daly has observed, under the common law, "the essential characteristic of the employer-employe......
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Caraher v. Sears, Roebuck & Co.
... ... recent opinion in Francis v. Franklin Cafeteria, ... Inc., 123 Conn. 320, at page 323, 195 A. 198, we quoted ... excerpts from ... employer in the means and methods used.’ Tortorici ... v. Moosop, Inc., 107 Conn. 143, 146, 139 A. 642, 643 ... ‘ The ... ...