| Conn. | Feb 5, 1925
The Workmen's Compensation Act in § 5342 of the General Statutes, provides that "all contracts of employment between an employer and employee, as such terms are defined in section 5388 of the General Statutes, except those made between an employer having regularly less than five employees and any such employee, shall be conclusively presumed to include a mutual agreement . . . to accept part B and become bound thereby, unless either employer or employee shall, by written stipulation in the contract, or by such notice as is prescribed in section 5343 of the General Statutes indicate his refusal to accept the provisions of part B."
The burden of proof continues to rest on the claimant, who must establish his right to compensation, but since, by the terms of the statute, the acceptance of part B is the rule, and the exemption due to the regular employment of less than five employees the exception to the rule, the claimant will have sustained the burden of proof in that particular, in case it does not appear from the facts found that the condition exists upon which the exemption rests. Literally, the word "regularly" means in accordance with some constant or periodic rule or practice. In this case, however, the *4 commissioner has found that the number of employees varied from day to day, not in accordance with any rule or practice, but that the number was dependent upon whether the employees who worked under contract upon the building were at liberty to and desired to work upon particular days. That being so, we must resort to the schedule showing the number of such employees on each working day, in order to ascertain whether in point of fact the respondent did regularly employ less than five employees.
The schedule shows that continuous work on the buildings commenced on April 20th. During the twenty-seven working days down to the date of the injury, May 20th, inclusive, the number of contract employees working on any one day varied from two to seven. On ten of these days less than five employees were employed, and on seventeen days five or more. During these twenty-seven days there were two periods of two or more consecutive working days when less than five were employed; to wit, on May 1st and 2d, and on May 15th, 16th and 17th. On the other hand, there were five such periods of consecutive working days on which five or more employees were at work; to wit, April 21st and 22d; April 25th, 26th and 27th; May 3d and 4th; May 6th, 8th, 9th, 10th, 11th, 12th and 13th, and May 18th and 19th. On May 20th, the date of the injury, but two were employed.
This schedule, whether taken alone or in connection with the other facts found, entirely fails to show that the respondent was exempted from part B, because it "regularly" employed less than five at and before the time of the injury. On the contrary, the schedule itself shows conclusively that the respondent irregularly employed both less and more than five employees during the period in question; and further, that in so far as regularity in the number of employees can be *5 evidenced by purely fortuitous repetition, the preponderance of such evidence is in favor of regularity in the employment of five or more.
It is claimed that the commissioner's finding that the respondent regularly employed less than five employees at the time of the injury is a finding of fact, which this court will not disturb. We think, however, that it is not only a conclusion inconsistent with the subordinate facts found, but that it also involves an erroneous interpretation of the statutory term "regularly." In this connection the commissioner's memorandum indicates that he was largely influenced by the fact that the average daily number of employees during the period in question was less than five, and also by the fact that respondent had no definite quota or standard number of employees. These considerations leave out of sight the decisive point that the statute requires regularity in the employment of less than five as the basis of exemption from the provisions of part B. An employer might employ five employees every working day in the year except one, and if on that day alone he employed only four, the average for the year would be less than five. Yet no one could say that he regularly employed less than five during that year. And so if an employer has no regular quota, but employs, at irregular intervals, sometimes more and sometimes less than five, that of itself simply establishes a lack of regularity in their number which may make it difficult for him to bring himself within the statutory exception. The question is not, as the respondent's brief contends, "whether the respondent regularly employed five or more." It is whether, on the facts found, it affirmatively appears that the respondent regularly employed less than five; and for the reasons given we are compelled to answer that question in the negative.
The commissioner for the third district, sitting as *6 acting commissioner for the fifth district, has found that the claimant's weekly wage computed according to the statute was $33, and has also found that the claimant incurred a bill of $342 for hospital charges. As our decision establishes the claimant's rights to compensation, we think the cause should be referred back to the commissioner for the fifth district with direction to make such award of compensation as the facts already found and the claimant's present incapacity may require.
There is error, the judgment is set aside and the cause remanded with direction to refer the cause to the commissioner of the fifth district for an award of compensation in accordance with this opinion.
In this opinion the other judges concurred, except KELLOGG, J., who concurred in the result, but died before the opinion was written.