The compensation commissioner in his original finding stated that "the fact that the decedent was on the relief payroll . . . does not place him outside the status of other employees hired for the task of removing snow," and it appears to me that the resulting award was made upon the ground that the decedent, notwithstanding his having been on work relief, was, at the time of his injuries, employed under a contract distinct from his relations as a relief worker. The facts requisite to a determination of that issue were contained in that finding. On the defendant's appeal to the Superior Court from that award the trial court (Booth, J.) held that the decedent's status had not changed, but that he continued a relief worker and that there was no contract of employment between the city and him, as such relief *Page 283 worker, which would bring him within the Compensation Act. It appears, therefore, that not only the issue of the relation of a relief worker to the city but also that of the effect of the decedent's engagement in snow removal was involved and considered in the first appeal and determined by the judgment rendered. An appeal to this court from that judgment could have secured a review of the decision upon both these issues but was not taken. Kalinick v. Collins Co., 116 Conn. 1,9, 163 A. 460. Instead, the plaintiff filed with the commissioner a motion that the finding be elaborated as to details of subordinate facts claimed to show that the decedent was under a contract "separate and apart" from his employment as a relief worker. This the commissioner denied on the ground that the matter having been heard and decided by the Superior Court, consideration of changes in the finding was not proper. A motion to the Superior Court to open the judgment and recommit to the commissioner for additional findings supporting the claim of separate contract was denied and an appeal from the commissioner's denial of the above motion was dismissed (Cornell, J.) on the ground that "the matter has been finally determined on the appear in this court and there is nothing now pending here in respect to it upon which this court may act. A correction of the finding which was the very basis of the court's disposition of the matter would, of course, be a vanity under such circumstances. It is still open to the claimant, if she has ground therefor, to apply to the commissioner to open and modify or vacate the finding and award."
Thereafter the plaintiff filed a petition alleging that "since the date of the original trial . . . the claimant has discovered other and further evidence [which] would be sufficient, of itself, to establish" that the decedent was engaged in work "under a specific contract *Page 284 of employment, separate and apart from the employment . . . as a relief worker." As to this petition the commissioner stated that it "could very properly be dismissed because the testimony . . . was not newly discovered evidence, and with due diligence could have been presented at the original hearings," but "in view of" the suggestion of Judge Cornell (which, as above quoted, was merely that if the plaintiff had ground she could apply to the commissioner to open the award) made a new finding, amplifying somewhat the circumstances of the decedent's employment in snow removal, held that this "was a definite contract of employment" and again awarded compensation. On the defendant's appeal from this award the Superior Court (Foster, J.) construed the decision on the first appeal as holding that the snow removal work was no distinct contract but merely additional work relief and that this was not compensable, and stated that if the plaintiff felt that this decision was erroneous she could have had it reviewed by appeal. "Instead of taking such action, she sought a new trial," and though in granting it the commissioner finds that "she presented no newly discovered evidence, . . . he makes an award of compensation really based upon his view of the law, which has been overruled by this court (Booth, J.)," and the defendant's appeal was sustained on that ground. In this, in my view of the somewhat complicated and confused situation, there was no error.
If the first award, granting compensation, was made by the commissioner on the ground that the decedent's work in snow removal was under a contract distinct from his status as a relief worker and the appeal was decided on that basis, there was no occasion for amplification of the finding in that respect. Also, as the commissioner found, the additional evidence was not newly discovered, but was merely cumulative, and the *Page 285 second finding added nothing essential or material to the "salient facts" upon which the majority opinion on this appeal holds that there was no change of status involved in the snow removal work, and no resulting contract of employment separate and distinct from the decedent's relation to the city as a relief worker. It follows that the plaintiff was not entitled to compensation on the basis of such a contract and as to this issue the judgment vacating the first award was correct. If the decision of the Superior Court on the first appeal be regarded as having been that the plaintiff was not entitled to compensation because the decedent's status was that of a relief worker, the determination, by that judgment, of that question and the plaintiff's rights thereunder became final when the judgment stood unappealed from. There was no need, or claim, for additional evidence or findings to establish the decedent's status as a relief worker, or other recognized ground for the commissioner to open his award if made on that basis. Kearns v. Torrington, 119 Conn. 522, 526,177 A. 725. I do not find that we have gone, nor do I think we should go, so far as to permit the opening of an award by a compensation commissioner, without such ground, merely because it appears to him that injustice may have been done or that upon a rehearing a different result would probably be reached, even though, as intimated in Gonirenki v. American Steel Wire Co., 106 Conn. 1, 12, 137 A. 26, this consideration might be taken as sufficient to warrant the court on appeal in ordering a remand to the commissioner; at most, I cannot approve this cause as a basis for what amounts to a reversal by a commissioner, upon the same material facts and without new evidence not cumulative or changed conditions, of a final judgment of the Superior Court. Therefore, I am of the opinion that the trial court was correct in sustaining the *Page 286 defendant's appeal upon the grounds stated by it, which rendered unnecessary consideration of the vexed question of the right of relief workers to workmen's compensation.
In this opinion JENNINGS, J., concurred.