148 Conn. 624 | Conn. | 1961
The plaintiff was awarded compensation under the Workmen’s Compensation Act as an employee of the defendant Weathermaster Alsco Corporation. The appeal of the defendants was dismissed by the Superior Court. From its judgment, the defendants have appealed to us. They claim error in the failure of the trial court to correct the commissioner’s finding. The commissioner, on the defendants’ motion to correct, added to the finding certain facts claimed by the defendants but refused to include others or to strike from the finding facts which the defendants alleged were found without evidence. The court corrected the finding by including additional facts but refused any further corrections. The ruling was correct. Practice Book §312; Marschner v. American Hardware Corporation, 141 Conn. 742, 747, 110 A.2d 461; Greenberg v. Electric Boat Co., 142 Conn. 404, 407, 114 A.2d 850; Maltbie, Conn. App. Proc. § 251.
The finding, as corrected, discloses the following facts: On February 24, 1958, Weathermaster was subject to the provisions of chapter 373 of the 1949 Revision, as amended (General Statutes, e. 566),
Between February 24, 1958, and March 6, 1958, Levine visited the job on at least two occasions, discussing the progress of the work with the plaintiff and Willman and making various suggestions as to methods and procedure in the re-siding, particularly in the use of backer plates and window molding. The plaintiff and Willman continued to apply backer plates as they had been doing and not as suggested by Levine. They continued to do the work in the manner they thought proper for assuring a good job. Other than the conversations about backer plates and window molding, Levine made no suggestions about how the work was to be done, because he had confidence in the ability of the plaintiff and Willman to perform the work satisfactorily. Levine was, however, empowered by Weathermaster to employ the plaintiff and direct his work. Acting through Levine, Weathermaster hired the plaintiff and directed him to go to work on the Campbell job.
After the plaintiff recovered from his injuries, he and Willman continued to work for Weather-master on various jobs until they were laid off in July, 1958. In April, 1958, they formed a partnership under the name of Northeastern General Contractors. Under that name, they conducted a gen
The defendants’ chief claim is that the finding does not support the conclusion that the plaintiff was an employee of Weathermaster and not an independent contractor. Weathermaster, in its brief, relies on two principal claims: (1) Levine was not the manager of Weathermaster’s New Haven office; (2) Weathermaster exercised no control over the plaintiff. The facts justify the determination that Levine was the manager. It is undisputed that he hired the plaintiff, directed him to work on the Campbell job and made suggestions while the work was in progress. Levine was the representative of Weathermaster in the New Haven area and was authorized to enter into re-siding contracts and secure employees to perform them in a manner which would satisfy its customers. Whether Levine was called “manager” or “sales manager” is immaterial in the determination of the status of the plaintiff.
Weathermaster claims that Levine visited the Campbell job on only two occasions and made but minor suggestions. That, however, is not the test. The test of the relationship is the right to control. It is not the fact of actual interference with control but the right to interfere which makes the difference between an independent contractor and a servant or agent. Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 413, 200 A. 324. Certainly Weather-master, which was bound by contract to perform the work of re-siding in a workmanlike manner, had the right to ensure that result by supervision and control of the applicators. The master and servant re
There is no error.
In this opinion the other judges concurred.