File No. 33686 | Conn. Super. Ct. | Feb 24, 1943
Plaintiffs, as the equitable owners of certain real estate located adjacent to a State highway in the Town of Branford, bring this action to recover damages of the Fresh Fish Carrier's, Inc., a Massachusetts corporation, and the Highway Commissioner of this State. The complaint is in one count and purports to set up a joint liability on the part of all defendants.
The theory of action in so far as the Highway Commissioner is concerned is predicated upon the allegations that the Commissioner, through an engineer in his department, issued a permit to H, a contractor, authorizing him to dig up a portion of the highway in question on the south side thereof for the purpose of installing water service to the adjoining property of one M, and after the installation was completed the contractor left a hole over eight inches in depth and two feet in diameter which remained in this condition for several weeks and that on August 13, 1942, a truck of the defendant Fresh Fish Carrier's, Inc., passed on and over the hole resulting in a loss of control by the operator and the deflection of the truck off of the highway upon the plaintiffs' property and causing certain damages thereon. Other specific allegations are recited, to wit: the highway is a State highway; the Commissioner through his agents know or should have known of the existence of the hole and had an adequate opportunity to remedy the condition; a failure of inspection of the highway *16 and a failure to inspect and supervise the work of H, the contractor; the existence of a defect in the highway "and a nuisance, being a dangerous and hazardous condition the natural result and effect of which would be to cause damage to .... trucks using said highway and to the property of owners adjacent upon said highway by causing .... trucks using said highway to get out of control."
The theory of action in so far as the other defendants are concerned (owner of truck and operator) is predicated upon the allegations of unreasonable speed, weather conditions, failure to keep a proper lookout, failure to apply brakes after striking the hole, and defective brakes.
The Highway Commissioner demurs on two grounds which are the subject of this memorandum:
"1. Because an action against the Highway Commissioner for injuries caused by a defect in a state highway will lie only if the defect is the sole cause of the plaintiffs' injuries, and it appears from the complaint that said injuries were caused by the negligence of the other defendants, namely Fresh Fish Carrier's, Inc., and Albert Perry.
"2. Because in so far as said complaint attempts to proceed upon the theory of nuisance, there is no statutory provision for the maintenance of a suit against the State Highway Commissioner of the State of Connecticut for the maintenance of a nuisance."
De first ground of the demurrer:
As against the Highway Commissioner the plaintiffs' right of action, if any, is statutory. Gen. Stat. (1930) § 1481;Korzen vs. Southbury,
The office of a demurrer, among other things, serves the *17 purpose of testing the legal sufficiency of the pleading to which it is directed. It follows, therefore, that the allegations of the plaintiffs' complaint are such as to fall under the dagger of the interposed demurrer on the first ground thereof.
De second ground of the demurrer:
The Highway Commissioner relies upon the memorandum of Judge O'Sullivan in Hillen vs. MacDonald,
The plaintiffs argue that the recent case of Bacon vs. RockyHill,
Again the allegations of the plaintiffs' complaint do not bear up, legally speaking, under the thrust of the interposed demurrer on the second ground thereof.
Accordingly, the demurrer is sustained on both grounds.