175 A. 782 | Conn. | 1934
While engaged in making repairs upon the roof of The Sacred Heart Roman Catholic Church at Waterbury, on July 31st, 1933, a ladder which the plaintiff was using broke and he fell and was injured. He made a claim for compensation against the United States Construction Company and the Church, which was heard by the commissioner for the second district, acting for the commissioner for the fifth district, and compensation was awarded the claimant against the Church. The award was set aside, on appeal, by the Superior Court and the claimant has appealed. The commissioner found in effect that at the time of the accident the claimant was in the employ of the Church, and that his injury arose out of and in the course of that employment. The respondent contends that at the time claimant was injured, he was an employee of the Construction Company, and entitled to compensation from it. The Superior Court on appeal added certain paragraphs to the finding and struck out *226 certain others, the ultimate effect of which was to find that the claimant, at the time of the accident, was not in the employ of the Church but of the Construction Company. The first question upon this appeal, therefore, is whether the Superior Court, in view of the evidence and facts found, was justified in overruling the finding of the commissioner that the claimant's injuries arose out of and in the course of his employment for the Church. A second inquiry is whether the claimant, even if it be conceded that he was an employee of the Church at the time, was other than "one whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business" within the meaning of General Statutes, § 5223.
It appears from the finding that the rector of the Church was the person in active charge of its real estate. In that capacity, he entered into a verbal contract with the United States Construction Company, a partnership consisting of Harvey and Leo Dupuis, whereby the company was to make certain repairs on the steeple and roof, which were to consist of putting the steeple in such condition that "it would be good for between fifteen and twenty years," and of replacing the missing slates on the roof, for which the Church was to pay the sum of $500. On July 21st, 1933, when the work was partly done, the superintendent of the company approached the rector and asked for a partial payment of the contract price for the purpose of meeting his payroll; and the rector paid him $250. On July 26th, a member of the construction firm asked the rector for the remaining $250, saying that the job would be finished by one o'clock on that day, and he wished to depart to see about another piece of work. The rector had noticed that certain slates were missing on the roof, and that three *227 faces of the steeple had not been properly repaired; and later in the day he had a conversation with the claimant, the foreman on the job, calling his attention to the unfinished work and told him that if he would see to it that the work was properly completed, he would pay him for it and "treat him right." Thereafter, the rector gave the claimant a check for $20 for himself and the men who were to help him, which payment was in the nature of a tip. On July 27th, the Construction Company took down its scaffolding and departed, leaving the work not properly completed. The following Monday, in accordance with his agreement with the rector, the claimant came back to the job with another man to finish the work. The rector procured a ladder for them and left them to go on with the work. While the claimant was standing on the ladder attempting to reach another to his helper on the roof, the ladder upon which he was standing broke, whereby he was forced to jump and received injuries.
In the last analysis, it depends upon the intention of the parties at the time, whether the negotiations between the rector and the claimant had the effect of a new arrangement to complete the work abandoned by the contractor, or were merely requests addressed to the claimant as an employee of the contractor to see that the latter properly completed the work. A careful examination of the evidence certified shows that there was testimony from which it could have been reasonably inferred by the commissioner that the rector, when he spoke to the claimant about the matter, had reason to believe that the contractor did not intend to do more upon the job, and that the claimant was employed to finish work uncompleted by the contractor. Although the $20 payment made for this work is found to have been in the nature of a tip, it furnished a definite consideration for which the service *228
was performed and thus distinguishes the instant case from one where, as in Gibbs v. Downs,
The second point of inquiry — whether the claimant while repairing the roof of the Church was employed for the purposes of the employer's trade or business within the meaning of General Statutes, § 5223 — presents a question of considerable difficulty. We have had two cases directly involving the construction of this statute. In Pallanck v. Donovan,
General Statutes, § 5230, relates to the liability of a principal to the employee of a contractor employed by the principal. Illustrative cases involving the construction of that statute are Bello v. Notkins,
There is error; the cause is remanded to the Superior Court with directions to dismiss the appeal.
In this opinion the other judges concurred, except HAINES, J., who dissented.
