Opinion
After an award of compensation, the commissioner, upon motion of the named defendant, opened and modified the award so that it ran against another corporation, which was the real employer, the named defendant having been liquidated before the award. The plaintiffs, desiring to sue the other corporation at common law, appealed. All the facts relative to the employment were within the knowledge of the defendants and were not within the plaintiffs' knowledge. Held that the commissioner had no power to open the award under these circumstances.
Argued January 7, 1941
Decided February 7, 1941.
APPEAL by the plaintiffs from the action of the compensation commissioner for the fourth district in reopening and modifying an award so that it would run against the real employer, brought to the Superior Court in Fairfield County, Ells, J.; judgment dismissing the appeal and affirming the modified award, from which the plaintiffs appealed to this court. Error and case remanded.
Lazarus S. Heyman and Louis Katz, for the appellants (plaintiffs).
John F. Chatfield, for the appellees (defendants).
This case concerns the right of a compensation commissioner to reopen an award. After a contested hearing, the commissioner, on March 20, 1939, found that after being employed by the National Hatters, Incorporated, for seven weeks, the son of the plaintiffs was killed in its factory on August 30, 1938. The plaintiffs, as dependents, were awarded compensation. On July 15, 1939, the National Hatters, Incorporated, and its insurer filed a motion to reopen and modify the finding and award on the ground that on November 30, 1937, the former had liquidated its assets, canceled its outstanding capital stock and that since that date it had had no employees. They requested that the award should be made to run against the Frank H. Lee Company and its insurer. The plaintiff objected. Their real ground of objection was because they wanted to sue the Frank H. Lee Company at common law. In a ruling filed July 15, 1939, and a supplemental ruling filed October 27, 1939, the commissioner granted the motion for the reasons stated therein and the additional reason that the decedent was employed by and received his wages from the Frank H. Lee Company. The latter and its insurer were made liable for the compensation as well as the original defendants. The only question on this appeal is whether the commissioner had the power to open the award under these circumstances.
The plaintiffs rely on Hayden v. Wallace Sons Mfg. Co., 100 Conn. 180, 123 A. 9. It is unnecessary to rehearse the facts in that case. As far as the issues of law before us are concerned) it differs from the case at bar only in that the award was the result of a voluntary agreement instead of a contested hearing and it was distinguished by the trial court on that ground. While that fact is mentioned in the decision, the reasoning is not based thereon. Pointing out that the only ground justifying the action of the commissioner under what is now General Statutes, 5240, would be a state of facts authorizing a court to open its judgment, it conclusively shows that, upon the facts of this case, a court would have no such power. See also Gonirenki v. American Steel Wire Co., 106 Conn. 1, 5, 137 A. 26. It does not appear that the plaintiffs were chargeable with negligence since all the facts relative to the employment were within the knowledge of the defendants and were not within the plaintiffs' knowledge. If, with this knowledge, the defendants did not get the fact as to who the employer was straight on the record, there is no reason why a court should come to their rescue. Kearns v. Torrington, 119 Conn. 522, 530, 177 A. 725. If the application to open the award had been made by the plaintiffs, the situation would have been different. The case at bar cannot be distinguished from the Hayden case and is ruled thereby.