Citation Numbers: 147 A. 705, 110 Conn. 221, 66 A.L.R. 1428, 1929 Conn. LEXIS 27
Judges: Wheeler, Maltbie, Haines, Hinman, Banks
Filed Date: 11/7/1929
Status: Precedential
Modified Date: 10/19/2024
The situation and obligations of the parties to this action — the plaintiff Johnson as general contractor, and the defendant Mortenson as subcontractor — so far as concerns the claimants as dependents of the employee, Pascoal, were determined in Pascoal
v. Mortenson,
The instant case presents the further question, advanced in Pascoal v. Mortenson, supra, but not determined by the award and held not to have been within the appeal, as to what are the rights and liabilities of Johnson and Mortenson, as between themselves. The claim made on behalf of Johnson is that, although he as general contractor and Mortenson as subcontractor, are both, without distinction as between them, liable for compensation on account of Pascoal, yet, except in favor of such employee, the obligation to *Page 224 pay compensation is primarily that of Mortenson, the immediate employer of the injured workman, and the situation of the general contractor is such as to entitle him to reimbursement by such immediate employer, for compensation payments to which he is subjected by reason of the award.
The Compensation Acts of some of the States contain express provisions imposing primary liability upon the subcontractor, as immediate employer, and making the principal contractor only secondarily liable. Also, "In many instances, if the contractors or subcontractors have insured their liability to their employees, then the principals or principal contractors are relieved from liability. But if a contractor or subcontractor, who is the direct employer, has failed to secure compensation payments by insurance, then the liability attaches to the principal or the principal contractor." Bradbury's Workmen's Compensation (3d Ed.) p. 264. Our Act contains no such provisions. Under § 5345, in cases falling within it, the principal employer or contractor, his subcontractor, and their respective insurers, if any, are equally responsible, so far as concerns the claimant. Palumbo v. Fuller Co., supra, p. 365.
Some of the Compensation Acts expressly provide a remedy for the contractor as against the subcontractor. The Virginia Act (§ 20) provides that the contractor shall be liable to pay to the employee of the subcontractor any compensation which he would have been liable to pay if that workman had been immediately employed by him, but that "where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay the compensation" independent of this section. The Illinois Act (§ 31) provides that "in the event any such person [the contractor] shall pay compensation under this section he *Page 225 may recover the amount thereof from the . . . subcontractor, if any." These examples fairly illustrate the nature of the enactments in those States which undertake to legislate on this subject. See Bulletin of Labor Statistics, Dept. of Labor, No. 423, Workmen's Compensation Legislation as of July 1st, 1926.
As we have seen, § 5345 has been construed as recognizing no distinction between principal contractor and subcontractor as to liability to a claimant for compensation but as making both primarily liable to him. The better view and practice of the compensation commissioners appears to have been to regard their jurisdiction as limited to determination of the right of the employee to compensation and as to who is liable therefor to such claimant, leaving the rights and liabilities between those held jointly liable to the claimant to "be worked out in such proceedings, among themselves, as may be brought for the purpose." See Freeman v.Furrey, 2 Conn. Comp. Dig., Part I, 400, 402.
In Witchekowski v. Falls Co.,
The object of such provisions as those contained in § 5345 is to afford full protection to workmen, by preventing the possibility of defeating the Act by hiring irresponsible contractors or subcontractors to carry on a part of the employer's work. White v. George A. *Page 226 Fuller Co.,
Pascoal's contract of employment with Mortenson gave him no right to recover wages from Johnson, and the latter had no power of direction over him. The presence of § 5345 in the Act evinces, of itself, that no relation exists between a contractor and the employee of a subcontractor which, unaided by the provisions of this section, would involve any right to compensation from the contractor as an employer of the claimant. The fact that, for the limited purpose of attainment of the object of that section, he is made subject to a like liability as the actual employer of the injured workman, does not alter their status and relations, or abolish the logical distinctions between them, when the object of the statute has been served and rights are to be determined which the statute does not create or affect.
No relation of employer and employee existed between Johnson and Pascoal, either as those terms are commonly understood and used or as they are defined in the Compensation Act (§ 5388): "``Employee' shall mean any person who has entered into or works under any contract of service or apprenticeship with an employer. . . . ``Employer' shall mean any person . . . using the services of another for pay." "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." The employer has "``The right to direct what shall be done and when and how it shall be done; . . . the right to the general control.'" Aisenberg v. Adams Co.,
As between Johnson and Mortenson, the liability of the latter should be regarded as primary and that of the former as secondary, only. Whether Johnson's situation is to be regarded as, in a sense, that of surety for Mortenson, or as a "quasi guarantor for the compensation," as held in Byrne v. Hitner's Sons Co.,
"There is always at least an implied contract between the parties which obliges a principal to reimburse his surety when the latter has paid the debt; he then becomes a creditor of the principal, and, the debt having matured and being due, is entitled to recover from the latter the amount so paid." 32 Cyc. 250;Babcock v. Hubbard,
"Where a guarantor, who has entered into a contract of guaranty at the request of or with the consent of the principal obliger, pays or is compelled to pay his principal's debt, the law raises an implied promise . . . on the part of the principal to reimburse the guarantor, and on the payment of the debt the guarantor at once has a right of action against the principal for reimbursement of the amount which he has paid." 28 Corpus Juris, 1037; Hopson v. Aetna Axle Spring *Page 229 Co.,
"Under the early jurisdiction at law, in the absence of express contracts for indemnity or exoneration, it was left to the caprice of the creditor to determine upon which of several parties bound for the same obligation the burden should fall, the loss being left wherever the creditor, by his choice of a defendant, might put it. This inadequacy of remedy on the part of the victim, and consequent failure of justice, became, however, a ground for the interposition of equity, and the proper readjustment of such burdens was, at an early day, an important field of equitable jurisdiction. The efforts of courts of equity have been directed toward placing the loss, as far as possible, on the parties ultimately liable — or as between two or more not ultimately liable, on the party whose liability is prior — and, as between parties equally liable, toward distributing the loss equally among them. The former result is reached by an action for reimbursement, and the latter by an action for contribution. Both of these results are assisted by the action for exoneration, and the remedial process of subrogation. . . . When a party only subsequently liable for an obligation, performs any part of it, he is entitled in equity to be reimbursed or indemnified to the amount of his loss, by any other party to the obligation whose liability is prior to his own. This right is given not only to the strict surety . . . but to a guarantor, a subsurety, suing the principal debtor, or a party not a strict surety, but merely secondarily liable for the debt, even exdelicto, in certain cases." 5 Pomeroy's Equity Jurisprudence (2d Ed.) p. 5162 et seq.
"Whenever one person has in his possession money which in equity and good conscience he should not retain from another, the later may recover it." Roberti *Page 230
v. Barbieri,
The plaintiffs are entitled to recover from the defendants any sums which they have paid or may pay, in good faith, upon matured obligations or have been forced to pay or may hereafter be forced to pay, toward the satisfaction of the award referred to in the complaint. The statement of this conclusion affords adequate answer to the questions reserved. No costs will be taxed in this court against either party.
In this opinion the other judges concurred.
Byrne v. Henry A. Hitner's Sons Co. , 290 Pa. 225 ( 1927 )
Roberti v. Barbieri , 105 Conn. 539 ( 1927 )
Bello v. Notkins , 101 Conn. 34 ( 1924 )
Hudson Trust Co. v. Cushman , 93 Conn. 119 ( 1918 )
Aisenberg v. Adams Co., Inc. , 95 Conn. 419 ( 1920 )
Palumbo v. George A. Fuller Co. , 99 Conn. 353 ( 1923 )
Witchekowski v. Falls Co. , 105 Conn. 737 ( 1927 )
Crane v. Peach Brothers , 106 Conn. 110 ( 1927 )
Fox v. Fafnir Bearing Co. , 107 Conn. 189 ( 1928 )
Thyberg v. Bonneville, No. Cv-98-0580561 (Jul. 30, 1999) , 25 Conn. L. Rptr. 151 ( 1999 )
Barker v. All Roofs by Dominic ( 2021 )
American States Insurance v. Hanover Insurance , 14 Kan. App. 2d 492 ( 1990 )
Morrisseau v. Legac , 123 Vt. 70 ( 1962 )
King v. United States , 491 F. Supp. 2d 286 ( 2007 )
Cogley v. Schnaper & Koren Construction Co. , 14 Md. App. 322 ( 1972 )
Kuhn v. Grant County , 201 Kan. 163 ( 1968 )
Hobelman v. Mel Krebs Construction Co. , 188 Kan. 825 ( 1961 )
Duffy Brothers Construction Co. v. Pistone Builders, Inc. , 207 Neb. 360 ( 1980 )
Cirrito v. Turner Construction Co. , 189 Conn. 701 ( 1983 )
Sechler v. Pastore , 103 Colo. 139 ( 1938 )
Prudential Insurance Co. v. Somers , 20 Conn. Super. Ct. 351 ( 1957 )
Chlasta v. Menard, No. Cv 93-0458295s (Aug. 19, 1994) , 1994 Conn. Super. Ct. 8495 ( 1994 )
Webb-Boone Paving Co. v. State Highway Commission , 351 Mo. 922 ( 1943 )
Colli v. Real Estate Commission , 169 Conn. 445 ( 1975 )
United States Fidelity & Guaranty Co. v. Spring Brook Farm ... , 135 Conn. 294 ( 1949 )
Bogoratt v. Pratt & Whitney Aircraft Co. , 114 Conn. 126 ( 1932 )
Fidelity & Casualty Insurance v. Sears Roebuck & Co. , 5 Conn. Supp. 108 ( 1937 )
Craig v. William E. McCrain, Inc. , 1 Conn. Supp. 78 ( 1935 )