148 Conn. 573 | Conn. | 1961
The plaintiffs Pearl Bonczkiewiez, Phyllis Yonng, Ronald Bonczkiewiez, a minor, and Vicky Lee Young, also a minor, sued to recover damages for personal injuries, and the plaintiff Stanley Bonczkiewiez, as administrator of the estate of Edward J. Bonczkiewiez, a deceased infant, sued to recover damages for the decedent’s wrongful death. The injuries and death were claimed to have been caused by the negligence of the defendants in the demolition of a building on West Main Street, in Meriden, in the heart of the retail shopping district. There was little difference in the claims of proof of the parties as to most of the circumstances of the accident. The interior of the building had been almost completely destroyed by fire on April 3, 1958. The walls, especially the front wall which immediately abutted the public sidewalk, were so weakened that they were in danger of falling unless demolished.
After the fire, Louis Merberg of the Merberg Wrecking Corporation approached George Kaplan, principal officer of a tenant, Growers’ Exchange, Inc., hereinafter referred to as Growers. It conducted a supermarket which was the largest of the five retail stores which had occupied the building. Kaplan was a brother-in-law of the defendant Sarah Kaplan, who, with the defendant Celia Feinstein, owned the building. Louis Merberg, on behalf of the wrecking corporation, sought the job of razing
Merberg erected a plywood fence, about six feet high, along the inner edge of the sidewalk. At about this time, ropes which had been placed around the sidewalk to prevent pedestrians from using it were taken down by parties unknown, so that the sidewalk was thereafter left open to pedestrian travel.
During the course of the trial, the plaintiffs orally agreed to give covenants not to sue to (a) Merberg Wrecking Corporation and Louis Merberg, (b) the city of Meriden, and (e) Growers, with the express oral understanding with each of these covenantees that when the written covenants not to sue had been finally drafted and executed, they would contain express reservations of rights in the plaintiffs against the defendants Celia Feinstein and Sarah Kaplan, the owners of the building. Subsequently, such covenants were drawn and executed. At the time the oral agreements as to the covenants were made, the defendants Celia Feinstein and Sarah Kaplan warned Merberg that they would look to it for indemnification if judgment in this case ran against them. Thereafter, the trial continued against the defendants Celia Feinstein and Sarah Kaplan only, and they are hereinafter referred to as the defendants. The total of the amounts re
The jury returned a verdict against the defendants in favor of the plaintiff Pearl Bonczkiewicz in the amount of $8000, in favor of the plaintiff Phyllis Young in the amount of $8000, and in favor of the plaintiff Stanley Bonczkiewicz, as administrator of the estate of the deceased infant, in the amount of $6500. From the judgments entered on these verdicts, the defendants have taken this appeal. Their main claim, as stated in their brief, is that the covenant not to sue Merberg operated, as a matter of law, to release them, as owners of the building, from any liability to any of these plaintiffs. Two further claims are that the employment of a financially responsible independent contractor under the contract in this case removed from the defendants any duty of protecting third parties and left that duty entirely on the independent contractor and that the charge was erroneous in leaving to the jury the question whether the demolition in this case was in fact a hazardous undertaking even if it was done with due care and in accordance with the contract provisions. For convenience, we consider the latter claims first.
The court charged that Merberg’s relationship
Contrary to the defendants’ claim, there was evidence from which the jury could find that even though the demolition work was done with reasonable care and in accordance with the terms of the contract, the proximity to the public sidewalk of the standing front wall made the demolition of the wall a task which would obviously and naturally, even if not necessarily, expose pedestrians to prob
The main claim of the defendants, and that most
As previously pointed out, the complaint alleged that the defendants entered into the demolition contract with Merberg, and the defendants’ answer denied this allegation. Since proof came in without objection that George Kaplan actually negotiated the contract which purported to be between Merberg and the defendants, George’s agency for the defendants in entering into the contract was necessarily in issue. See Practice Book § 114; Woodruff v. Perrotti, 99 Conn. 639, 644, 122 A. 452. The defendants took two exceptions to the charge in connection with the issue of George’s agency, and both exceptions were pursued in the assignments of error. The basic claim of error presented by the two exceptions is most unusual. It is that, although the question of George’s agency was in issue under the pleadings, the court should not have submitted the issue to the jury, since the court knew or should have known from certain conferences in chambers that the defendants intended to admit the agency. We need not speculate whether the submission of the issue could have been harmful to the defendants on the theory, suggested in their brief, that it was calculated to antagonize the jury because the evidence had made the agency so manifest that it was apparent that the denial of it in the answer was unjustifiable. The answer to the defendants’ claim is that the court was entitled to submit to the jury
The plaintiffs introduced certain of the larger doctors’ bills as exhibits, with a statement by counsel that while all the doctors would not be called, he had summoned, and expected to have present, two of the doctors, whom he named. Neither of the two doctors appeared in court. The defendants subsequently moved that all the exhibits be stricken. The court might properly have granted the motion so far as it sought to eliminate evidence admitted under an unfulfilled promise to connect, especially if no explanation satisfactory to the court was given of the failure to have the two doctors in court. Hemingway v. Cozzolino, 117 Conn. 689, 690, 169 A. 621. The plaintiffs themselves, however, directly testified, at least in the ease of the larger bills, that they had been incurred as a result of the injuries received. The other bills are too trivial in amount
The other claims of error do not require discussion.
There is no error.
In this opinion the other judges concurred.
“We will furnish all the plant, labor, equipment and insurance to demolish and remove from the site the building and contents known as 80 West Main Street, Meriden, Connecticut.
“We will remove all the interior and exterior walls level with the existing grade excepting any party walls or other walls you may so direct us to leave intact, and clean out the entire area to the cellar floor but not including the concrete cellar floor. We will also erect a fence around the entire property to protect the passing public.
“All the salvage shall become the property of this contractor, and upon completion of operations we are to receive the lump sum of [$7000].
“Our price includes securing the necessary permits as well as removing the respective utility services.”