Bello v. Notkins , 101 Conn. 34 ( 1924 )

The only question argued on this appeal was whether the Superior Court erred in holding, upon the facts found, that Abraham L. Notkins was liable to pay compensation to the plaintiff as a "principal employer" within the meaning of § 5345 of the General Statutes, which is printed in the footnote.^*

While the finding is not explicit, the commissioner's award involves the conclusion of fact that the house in question was not being erected by the firm of A. L. Notkins and Sons, and was being erected by Abraham L. Notkins alone. The appellant does not question the correctness of this conclusion. On the contrary, he expressly admits its truth, saying on the brief: "The construction of the house was not under the control, supervision, or direction of the real estate firm of A. L. Notkins Sons, nor was its construction financed by the firm." Admittedly, these things were done by Abraham L. Notkins in his capacity as owner of the premises, and in this informal proceeding it makes no difference whether or not the other individuals who now have some equitable interest in the house, were associated with him.

The defendant contends that though he, or Benjamin acting for him, employed Lindstrom to lay the floors, he cannot be held as "principal employer" because he was not — as an individual — engaged in the "trade or business" of building houses, and because the house in question was not built for rent or sale, or as a business speculation, but as a home for his personal use. We do not accede to this proposition. The building of a substantial dwelling-house is a business proposition, whether it be constructed for the owner's profit or for his personal use and comfort. As Judge Case, when sitting as a Superior Court judge, said of the owner in Gorse v. Chaplin, reported in 2 Conn. Comp. Dig. 9, 11: "His ``business' here, temporary or otherwise, in so far as this action concerns itself with him, is the improvement of the real estate in question." In that case the owner caused a pleasure pond to be constructed on a farm which he used as a summer residence, and he was held to be for the time being in the "business" of building a pond so as to come within the scope of the Workmen's Compensation Act. So the operation of building a substantial dwelling-house is a business operation. The Workmen's Compensation Act deals with the business of constructing it, irrespective of the use which the owner or builder may intend to make of it, after it is built. The general policy of the Act requires that every business involving the employment of five or more workmen, whether it be permanent or temporary, should be carried on subject to the provisions of the Act. The special purpose of § 5345 is to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.

On principle, it is clear that an owner who sets in motion the business of erecting a building may either carry on the business himself, or employ a general contractor to carry it on for him. If the owner chooses to retain in his own hands the business of erecting the building, and to parcel out fractions of the work of construction among separate contractors each responsible solely to the owner for a fraction only of the entire work, the owner must be held to be the "principal employer" within the meaning of § 5345, and also to be engaged for the time being in the "business" of constructing the building. Otherwise § 5345, and, indeed, the whole policy of the Workmen's Compensation Act, might be evaded by the device of the owner parcelling out the work of construction among a number of separate contractors no one of whom employed five or more workmen.

On the other hand, if the owner declines to take upon himself the business of erecting the building, and in good faith employs for that purpose a general contractor engaged in that business, the policy of the Act is satisfied by that substitution of another responsible employer in the place of the owner, and the owner does not, merely by making such a contract, become an "employer" under the Workmen's Compensation Act, or a "principal employer" under § 5345.

These conclusions appear to us to express the letter and intent of the statute, and when applied to this case they produce the result that the judgment of the Superior Court was correct.

There is no error.

In this opinion the other judges concurred.