Orsinie v. Torrance , 96 Conn. 352 ( 1921 )

The plaintiff was employed by the defendant as a laborer at the plant of the Eastern Connecticut Power Company, about seven miles from Norwich. On the day in question the plaintiff and other employees of the defendant had finished their work for the day, and were waiting beside the highway for a trolley-car to take them back to Norwich, when the plaintiff, in crossing the highway to get a ride on a motortruck, was knocked down by a motorcycle and received the injuries in question.

The commissioner held that the principle announced in Swanson v. Latham, 92 Conn. 87, 101 A. 492, was applicable to the present case; and the correctness of this ruling depends on the terms of the contract of employment between the plaintiff and the defendant. The commissioner has not found what the terms of that contract were. He states that "the evidence of both claimant and respondent brought out" certain terms of the contract, and that "the employer testifies" to certain other terms. This is a mere statement of what the evidence was, and it leaves the controlling facts undetermined one way or the other. In the exercise of his peculiar and exclusive jurisdiction, the commissioner ought to decide explicitly every material issue of fact on which his conclusions are based. Documentary evidence should be recited in so far as is necessary to test the correctness of the commissioner's conclusions therefrom, but the testimony of witnesses should not be repeated in the finding.

Strictly speaking, the result in the present case is that the findings of fact fail to support the award, because the terms of the verbal contract of employment are not ascertained by any finding. Inasmuch as both the commissioner and the parties have treated the recitals of evidence as findings of fact, we will assume that the facts are so found, and it then appears that the contract of employment includes a provision, required by the labor union, that when the employer's place of business is not within the single trolley fare limit, the employer should either furnish transportation to and from the work, or should add the cost of such transportation, measured by the prevailing trolley fare, to the agreed daily wage. Under the agreement in force between the defendant and his employees, including the plaintiff, the trolley fare to and from the work was added to the daily wage and included in the weekly pay roll. It also appears that the employees were not bound to use the trolley-car, but might walk home if they saw fit, and that the cost of transportation was added to the pay roll and received by them whether they walked or rode either in the trolley-car or in any passing vehicle. The employer was not concerned so long as the men put in their full eight hours of work per day.

This state of facts does not bring the case within the principles of Swanson v. Latham, 92 Conn. 87,101 A. 492. In that case furnishing of transportation by the employer was a part of the contract of employment, and the injury rose out of a hazard of the transportation which he furnished. In this case the employer did not furnish transportation. He did no more than to pay the wages which the rules of the labor union required him to pay. The fact that because of the location of the work this wage included a sum measured by the cost of transportation by trolley to and from the work, is of no more significance than if it had included a sum measured by the additional cost of food at that place. The plaintiff was left free to buy his own transportation or not. As soon as he left the employer's premises, the contract of employment ceased to operate, directly or indirectly, either as controlling his movements or as affecting the hazards to which he was subjected.

There is error, the judgment is set aside, and the