"Employee shall mean any person who has entered into or works under any contract of service or apprenticeship with an employer." So that compensation can be awarded in this case, provided the deceased had entered into or was working under any contract of service with the Adams Company when he received his injuries. es, accountings, and reports, and these were used by the deceased. It provided the horse used by the deceased in the business and paid its board; it employed assistants for deceased, if any were required; its rule required accountings by deceased weekly, and this was customarily done; it carried on all transactions, including payments, subsequent to the contract of sale made between it and its customers, without the knowledge of the [1, 2] The burden of sustaining the proof of this is upon the plaintiff-claimant. And deceased except in the occasional instance. we agree with the respondents that the question, whether the deceased was an employee when he met his injuries is a conclusion to be drawn from the facts found, and that the conclusion of the trial court that the de ceased was an employee is not controlling, but is reviewable. The means and method of conducting this business, as we have in part detailed, comprise the essence of this business. The subject of sale, the terms of sale, and the proceeds of sale remained in the control of the company. Practically this constituted a gen eral control. The defendants read the finding as leading The facts from which the respondents to the conclusion that the relationship be- claim to find evidence of control resting in tween the deceased and the Adams Company the deceased salesman are few. It is said was that of an independent contractor, and the fact that the deceased could sell the not that of an employee. The determination goods of the company in any part of Connectof this relationship in the light of the find-icut indicates his control over the sales. His ing settles, adversely to the defendants' contention, the ground of appeal that the injuries did not arise "out of and in the course of the employment." [3, 4] Our recent cases (Kinsman v. Hartford Courant Co., 108 Atl. 562, Thompson v. Twiss, 90 Conn. 444, 447, 97 Atl. 328, L. R. A. 1916E, 506, and Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 85 Atl. 514) make definite and clear the tests of our law as to whether in a given case the relation be that of employment or that of independent contractor. The true test we hold is, Had the employer the "right to direct what shall be done and when and how it shall be done, the right to the general control?" The independent contractor contracts to produce a given result by methods under his own control. The employee contracts to produce a given result, subject to the lawful orders and control of his employer in the means and methods used in that employment. He is bound in some degree to the duty of service to the employer. Wood on Master and Servant, 317. control does not differ, unless in degree, from the control of the ordinary salesman on the road, who is expected to call on old customers, perhaps required to call on special customers. Aside from these restrictions the ordinary salesman is at liberty to sell to any responsible party in the locality covered by him. In this case the selling zone is more extensive, but the nature of the control is the same. Indeed, in the case of this deceased the company co-operated in the sales by giving him the name of prospective purchasers from time to time. But the liberty to go anywhere in the entire state enlarged the freedom of action of this salesman over that of the ordinary salesman, but it did not enlarge his control over the goods sold, the terms of sale, or the proceeds of the sale. The fact that the deceased could regulate his own hours of work is without significance. His pay depended upon the results of his sales. The particular hours he worked were unimportant to his employer, provided adequate sales were made. When this did not result, the company was at liberty at any time to discharge the deceased from their employment. The right of discharge is one of the strong indications that the relation was one of employment. An independent contractor must be permitted to finish his contract in the absence of breach on his part. That the deceased was paid by commission is not a determining test, but, as a rule, it is quite immaterial how the payment is made, whether The Adams Company was engaged in selling goods in Connecticut on the installment plan, through salesmen whom it selected and whom it had the right to discharge. It employed the deceased as one of the salesmen of its goods. We can ascertain whether the deceased was an independent contractor or an employee by applying our test and finding whether the deceased in the means and methods used in the sale of these goods was in wages, salary, or commission, or by the subject to the orders and control of this company. The goods were sold on lease by the deceased, and remained the goods of the company until paid for. They came into the Whatever the other conditions of a contract possession of the deceased on bailment. The may be, if in its essential features it provides company made the terms of all sales, and that the employer retain no control over the this we regard as a very important feature details of the work, but leaves to the other of control. It furnished the blanks for leas-party the determination of the manner of do piece or job, The use of the deceased's wagon in the sales of the goods was an inconsequential detail of the business. (111 A.) ing it, without subjecting him to the control ger's negligence, even though passenger would of the employer, the party undertaking to do not be injured if he had kept his leg in the car. the work is a contractor, and not a mere em- 4. Carriers 339-Passenger's negligence no ployee. Pace v. Appanoose County, 184 Iowa, bar to recovery for injuries unless the prox498, 168 N. W. 916. imate cause. There is and can be no controversy concerning the principles of law applicable. The difficulty is the common one of applying to the facts the correct principle. When the respondents say the facts found are absolutely devoid of any control of details which the Adams Company might have exercised over the deceased as to his course of conduct in procuring contracts with third parties, they overlook a large part of the finding; the re tention of control over the goods, the fixing of all terms of sale, the collection of the selling price, and the retention of the right to discharge the salesman at any time are certainly details of control over this business, which the company continued to exercise up to the deceased's injuries. When the course of this business is subjected to analysis, the deceased must be held to have been engaged in his master's business, acting for and in his place and in accordance with his will, and at no time doing his own business or acting for his own ends. There is no error. The other Judges concurred. (95 Conn. 442) GUILFOILE v. SMITH. (Supreme Court of Errors of Connecticut. Nov. 10, 1920.) 1. Trial 139(1), 165—No nonsuit in face of evidence of plaintiff unless such evidence is unworthy of credence. Unless unworthy of credence, the trial court on motion for nonsuit must regard the evidence introduced by plaintiff in the aspect most favorable to his cause of action, and he cannot grant a nonsuit if plaintiff makes out a prima facie case, though it may, in the opinion of the court, be a weak one. 2. Carriers 331(6)-Passenger is negligent in riding with leg protruding from automobile door. A passenger riding in an automobile on the street of a populous community, with one leg protruding from one of the doors in such a way as to make it liable to come in contact with passing objects, is negligent. 3. Carriers 339-Negligence in permitting leg to protrude over automobile door not necessarily 'proximate cause of injury. PER CURIAM. The trial court granted the motion for a nonsuit because the plaintiff had failed to prove that the death of the decedent was due to the accident and because the proximate cause of the decedent's injuries was his own negligence. [1] Unless unworthy of credence, the trial court was bound to regard the evidence introduced by the plaintiff in the aspect most favorable to his cause of action. "It was enough if he had thus made out a prima facie case, though it might in the opinion of the court be a weak one." Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 Atl. 1126, 1128. As we read the evidence, the jury might reasonably have found that the death of the decedent was due to an accident happening while the decedent was a passenger for hire in defendant's automobile, and at the time defendant ran his car into a stationary water tank upon a city street through his negligent operation of the car. And further the jury might reasonably have found that at the time of impact the car was damaged, and the decedent, who sat upon the lap of a passenger, with one leg protruding from the door of the car upon the side opposite the tank, had his leg caught between the car and the tank and was pulled from the car, squeezed in body, and thrown to the ground, and as a consequence suffered injuries from which he shortly died. If a passenger while riding in an automobile with a part of his leg over the car door was injured at the time of a collision of the car with some fixed or moving object in the [2] A passenger riding in an automobile highway caused by the negligent operation of in the street of a populous community, with the car, it does not follow that the proximate one leg protruding from one of the doors of cause of the injury was due to the passen- the car in such way as to make it liable to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes come in contact with passing objects, is negligent in conduct. The trial court presumably found that the decedent's leg did protrude so as to make it liable to come in contact with passing objects; and it must have assumed that the leg did protrude beyond the fender of the car. Of this there was no evidence. [3] If the passenger while riding with a part of his leg over the car door be injured at the time of the collision of the car with some fixed or moving object in the highway caused by the negligent operation of the driver of the car, it does not follow that the proximate cause of the injury was due to the passenger's own negligence. The negligence of the passenger may have been the proximate cause of his injuries or it may not. It all depends upon the circumstances. Had not the leg protruded, the decedent would not in all probability have been injured. But his position was a condition, not necessarily the cause of the accident. Hoyt v. N. Y., N. H. & H. R. R. Co., 78 Conn. 709, 713, 63 Atl. 393. [4] The evidence must establish that the decedent's negligence was the proximate cause of his injuries, or recovery will not be barred for that reason. Whether the position of the decedent was a proximate cause of his injuries is a question of fact, dependent upon the ascertainment of the exact position of the decedent, upon the extent of the protrusion of the leg, whether beyond the fender or not, and upon the relation of his injuries to his position considered in connection with the surrounding circumstances. There is error, the judgment is set aside, and a new trial is ordered. (95 Conn. 408) PROCACCINO v. E. HORTON & SONS et al. (Supreme Court of Errors of Connecticut. Nov 10, 1920.) Master and servant ~375(2)—Injury to employee on way to work held to arise in "course of employment" within Compensation Act. Where manufacturing plants maintained footbridges over a canal which their employees used indiscriminately, and it was then necessary for them to pass over private property and railroad tracks, an employee killed by train on his way to work must be deemed to have met the injury within the course of his employment within the Workmen's Compensation Act, though he used that bridge which the master did not own. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] Appeal from Superior Court, Hartford Workmen's Compensation Act for compensa- em tion, and claimant appealed to the superior court, which affirmed the decision, and claimant again appeals. Error. This is a proceeding under the Workmen's Compensation Act (Pub. Acts 1913, p. 1735) by Sylvia Procaccino, widow and dependent of Vitantonio Procaccino, the decedent, against E. Horton & Sons. The decedent was employed in a manufacturing establishment conducted by the defendants in Windsor Locks. At Windsor Locks a canal runs southerly parallel to the Connecticut river, and between the canal and the river are manufacturing plants of the defendant and others. Running parallel to the canal and directly west of it are the tracks of the New York, New Haven & Hartford Railroad Company. Running parallel to both tracks and canal and directly westward of the tracks is the main street of Windsor Locks. The village of Windsor Locks lies westward of its main street. Several manufacturing plants occupy positions between the canal and the river. Directly to the north of the defendants' plant is the plant of the American Writing Paper Company, while directly south of the defendants' plant is the plant of the J. R. Montgomery Company. There is a footbridge across the canal about opposite the Montgomery plant, leading across the canal with a pathway across the railroad tracks to Main street. This bridge was owned and controlled jointly by the defendants and the Montgomery Company. There is also a footbridge and pathway leading across the canal and railroad tracks to Main street about opposite the plant of the American Writing Paper Company. There is a highway which leaves Main street at a right angle at a point south of all the aforesaid plants and crosses the railroad tracks, the canal and the Connecticut river, and leads into Warehouse Point. Apparently from the finding there is no highway on the easterly side of the canal. The employees of the defendants and of the other plants in going to and from work used either one of these footbridges across the canal and paths across the railroad tracks or crossed the tracks and canal by the Warehouse Point highway, as might be most convenient. The railroad tracks, the land on the east side of the railroad tracks, and the two footbridges were private property. The defend. ants gave no instructions to the deceased or any of its employees as to how they were to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) go to and from their plant. The most con- was within the scope of his employment when venient means for employees in the situation he was passing to or from his work at the of the decedent of reaching the defendants plant over the private property lying between was by way of the footbridge of the American Main street and the plant; in other words, Writing Paper Company, which was located the use of this method of approach to the nearly opposite Grove street, upon which he plant by this employee was an incidental term lived. Presumably he customarily used it. of his contract of employment annexed to it The method of approaching the defendants' by the consent of his employers. Merlino v. plant by the Warehouse Point highway was Connecticut Quarries Co., 93 Conn. 57, 104 an inconvenient and little used method, and Atl. 396. one that, from the finding, apparently involved passing over private property in going from the Warehouse Point road northerly to the defendants' plant. On Saturday, November 12th, the decedent, when returning to work at the defendants' plant, after having dinner at his home, while crossing the tracks just before reaching the footbridge of the American Writing Paper Company, was struck by a north-bound train and instantly killed. Jacob Berman, of Hartford, for appellant. CURTIS, J. (after stating the facts as above). The question in controversy in this case is whether the injury to the employee arose within the course of his employment or out of his employment. The two neighboring footbridges over the canal maintained by neighboring plants were used indiscriminately by employees of the nearby plants. The fact that the defendants and an adjoining manufacturing concern owned and controlled one of the footbridges crossing the canal, from which a pathway led over the railroad tracks to Main street, and which bridge apparently had no other use than as a way of approaching or leaving the plants to and from Main street, practically makes the inference necessary that this footbridge and the pathway from it over the railroad tracks was a method of approach for employees to the defendants' plant situated as the decedent was, contemplated in their employment by the defendants. When this employee, under the facts found, entered upon the private property lying between Main street and the defendants' plant, he came within the zone of his employment, and all dangers and perils incident to the use of this method of approach were perils incident to and arising out of his employment. It does not render the dangers of this contemplated method of approach any less an incident of the decedent's employment that there existed a method of approach by way of the Warehouse Point highway which would permit him to cross the railroad tracks on a highway. This method of approach for per sons in the situation of the decedent was highly inconvenient, and it was not contemplated by the defendants in his employment that he should ordinarily use it. Apparently the approach to this plant by way of the Warehouse Point road involved a much longer passage over private property than the method of approach followed by the decedent. If our interpretation of the finding is correct, there was no way to reach the Horton plant that did not involve passing over private property. In Fumiciello's Case, 219 Mass. 488, 107 N. E. 349, crossing the railway tracks was not a method of approach to the employer's plant which the employer contemplated that all employees living in certain localities should use, and in that particular is distinguished from this case. Furthermore, it does not appear in that case that the railway tracks were adjacent to the plant directly or as one of several strips of private property lying between the plant and a highway. The indiscriminate use of both footbridges by employees of neighboring plants as the method of approach for employees in the situation of the decedent, the acquiescence of the employer in such use, in connection with the facts found, leads irresistibly to the inference that the method of approaching the defendants' plant which this employee customarily used was a method of approach which the defendants contemplated that employees whose homes were situated as this employee's home was situated would ordinarily use in going to and from the Horton plant. The defendants' employment of the dece dent therefore contemplated that he would approach and leave the plant by passing to and from the highway over private property, including either of the footbridges and the railroad tracks parallel with Main street. Under these circumstances this employee legal effect of the situation. In the case of In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318, the claimant was injured while upon stairs over which her employer had no right of control, but the use of which by her was contemplated in her employment. The fact that she was a licensee or trespasser on another's property did not bar the claimant's recovery of compensation. The fact that her use of the stairway was contemplated by the employer was apparently the essential fact which made such use an incident of her employment. The fact that the stairway was the only method of approach conclusively established the fact that the use was contemplated by the employer. The fact that the contemplated way of approach in the present case may have passed over several strips of land owned by several different proprietors would not change the The private property passed over was, as a whole, adja-14. Evidence 596(1), 598(1)—Verdict to be cent to the plant. rendered for party having "preponderance of evidence." The jury is to render its verdict in favor If the stairway in the Sundine Case had passed through several floors of the building, each floor owned by a different proprietor. of the party in whose favor the evidence prewould the employer in that case only have been held liable for an injury on the stafrway occurring on the floor first entered by the employee? The answer is obvious. ponderates; "preponderance of evidence" meaning the greater weight of evidence, and not necessarily the greater number of witnesses. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Preponderance.] We hold that the decedent at the time of his injury was using a way of approach over private property from a highway to the defendants' plant, which way of approach the defendants in their employment of the decedent contemplated that he should use, and that the decedent in such use of the way was, after he left the highway, in the course of his employment, and that the injury arose out of a danger incident to his employment. Honnold on Workmen's Compensation, p. 368; In re O'Toole, 229 Mass. 165, 118 N. E. 303; Keaney's Case, 232 Mass. 532, 122 N. E. 739; Starr Piano Co. v. Industrial Accident Commission (Cal.) 184 Pac. 860; Papineau v. Industrial Accident Commission (Cal. App.) 187 Pac. 108; Butterworth's Workmen's Compen-peals. Verdict for plaintiff. sation, p. 459; Merlino v. Connecticut Quarries Co., 93 Conn. 57, 104 Atl. 396; Carter v. Rowe, 92 Conn. 82, 101 Atl. 491; Judicial Interpretation of Workmen's Compensation Cases, by Charters, p. 233. 5. Sales 384(7)-Measure of damages on buyer's default difference between agreed price and resale price. Seller's measure of damages on buyer's wrongful cancellation of contract to purchase corn is the difference between the price buyer agreed to pay and the price seller obtained for it upon a resale. There is error, the judgment is reversed, and the superior court directed to enter its judgment sustaining the appeal from the commissioner, vacating his award, and directing him to make an award in favor of the claimant for such amount as the facts found may warrant. The other Judges concurred. STUCKERT v. CANN. Appeal from Court of Common Pleas, New Castle County. Action by Richard T. Cann against John C. Stuckert. Judgment for plaintiff in the court of common pleas, and defendant ap BOYCE and RICE, JJ., sitting. Walter J. Willis, of Wilmington, for ap pellant. Philip L. Garrett and John Pearce Cann both of Wilmington, for respondent. Superior Court for New Castle County, November Term, 1920. Appeal, No. 86, September Term, 1919. The pro narr. on appeal was in assumpsit on common counts. The pleas were nonassumpsit, set-off, and statute of limitations. Rep.'s and issues entered. The claims and contentions of the parties appear in the charge of the court. RICE, J. (charging the jury). In this action Richard T. Cann, the plaintiff, seeks to recover from John C. Stuckert, the defendNew Castle. ant, damages alleged to have been occasioned by the defendant's cancellation of a contract for the purchase by the defendant of 2,000 bushels of corn from the plaintiff. (Superior Court of Delaware. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Agreement.] 2. Contracts 94(1)-Procured by fraudulent misrepresentations as to material fact may be avoided. A party who has been induced to make a contract to his damage or loss by a fraudulent misrepresentation concerning a material fact may avoid the contract. 3. Trial 134-Questions of fact for jury. Questions of fact are for the determination of the jury. The plaintiff claims that on January 11, 1919, the defendant bought from him 2,000 bushels of corn at the agreed price of $1.55 per bushel to be delivered to the defendant at such time as the defendant could arrange for cars in which to load the corn; that he, the plaintiff, kept the corn subject to loading orders by the defendant until the defendant notified him on February 11th that he, the defendant, would not accept a delivery of the corn and the plaintiff could dispose of the same at any time and to any person who would buy it. The plaintiff claims he thereupon sold the corn for $1.30 net, the best market price he could obtain for it, and thereby suffered a loss of $500 by reason of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |