Sullivan v. Schellinger

PEEK, J.

This is an appeal by defendant from a judgment in favor of plaintiff Sullivan in an action for personal injuries resulting from a “blowout” of a plug in a heating main which the court found occurred as a result of defendant’s negligence.

By his complaint plaintiff alleged that defendant was a fellow employee; that the defendant negligently and carelessly connected an air compressor to a water line and released compressed air into the line thereby causing plaintiff to be struck in the face and in the eye. Prior to instituting the present action plaintiff applied for and received workmen’s compensation benefits.

Defendant, by his answer, presented three defenses: First the allegations that he was a partner of one Charles Harris, that the injuries if any suffered by plaintiff arose out of and in the course and scope of his employment for said partners, and that by reason thereof jurisdiction over the alleged cause of action was vested solely in the Industrial Accident Commission and was without the jurisdiction of the superior court; second, a general denial of the allegations of negligence as

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charged in plaintiff’s complaint; and third the affirmative defense of contributory negligence.

Pursuant to a stipulation of the parties, the partnership issue was tried specially and the court found that defendant was not a partner with Harris but, to the contrary, was an employee, and therefore the superior court had jurisdiction of the cause. The issues of negligence and contributory negligence were thereafter tried by a jury which disagreed. The same issues were subsequently tried by the court which found in favor of plaintiff, and this appeal by defendant followed.

Defendant’s contention that he was a partner and not an employee is but a reargument of the evidence. The record discloses that the subcontract was in Harris’ name alone, as were the workmen's compensation insurance policy, the plumbing permit, the union contract, the bank account, and the contractor’s license. No partnership income tax return was ever filed. Additionally in the report of the injury filed by Harris he stated he was the employer of plaintiff and that only his employees were involved. On another occasion Harris stated that the defendant was his foreman. Also the hospital records show that defendant also reported Harris as his employer.