52 A.2d 862 | Conn. | 1947
This case is an aftermath of Tully v. Demir et al.,
Res adjudicata should be specially pleaded. Practice Book 104; McKnight v. Gizze,
It is not questioned that the plaintiff, as insurer, stands in the shoes of the insured, the lessees. The plaintiff concedes, as it must, that ordinarily contribution does not lie between joint tort-feasors. Caviote v. Shea,
We consider first whether the original judgment *539 was res adjudicata of the issue as regards the parties in this action. We cannot resort to that decision for a determination of the claim without first deciding the plaintiff's preliminary contention that the present defendant and the lessees were not adversaries in that case and that no issues were litigated between them. The contention is supported by the record. It does not show any claim by either the present defendant or the lessees that the negligence of the other was the sole proximate cause of the injury. There were no adversary pleadings. The record does not show an attempt by either the present defendant or the lessees to escape liability by claiming that the other was solely liable. It does not fairly appear that they were adversaries, at least to such an extent as to render the judgment conclusive as to the rights and liabilities of the codefendants as to each other.
In Bulkeley v. House,
We determine next whether under the allegations of the complaint the plaintiff could prove that there was a right of reimbursement. As the original judgment was not res adjudicata, the present case is to be decided independently of the pleadings or findings in the original action. 1 Freeman, Judgments (5th Ed.) p. 921; see Rochon v. Preferred Accident Ins. Co.,
The complaint in the present action as amplified by that file may be summarized in this way: Tully fell into an opening in the sidewalk in front of the lessees' place of business, owing to the fact that the trap door was open, there were no guards and no warning was given to travelers. The door had been opened by the defendant's employees in order to make it possible for them to deliver groceries to the lessees. The trap door and opening were in the exclusive control of the defendant's employees. Tully recovered a judgment against both the present defendant and the lessees. The basis of the liability of the latter was that, as adjoining proprietors, they were legally responsible for a condition in the sidewalk which was intrinsically dangerous to travelers in the absence of guards or warning, even though the trap door had been opened and the situation was in the control of the defendant. The plaintiff, which had insured the lessees against liability, paid one-half of the judgment and incurred certain expenses. This was caused by the negligence of the employees of the present defendant in failing to guard the opening or give warning to travelers.
The rule that there cannot be contribution between joint tort-feasors is subject to definite limitations. We have indicated this in Smith v. Foran,
Where there are two joint tort-feasors and each is guilty of intentional wrongdoing there may be sound justification for a denial of contribution because either party in seeking it would have to take his stand upon his own wrong. We have held that where the negligence of each of two defendants enters immediately and directly into the production of the accident neither should have a right to contribution. Caviote v. Shea, supra. Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury. The complaint was carefully drawn so as to allege the latter situation, and under it the plaintiff might prove facts which would justify a judgment in its favor. The demurrer should not have been sustained.
There is error, the judgment is set aside and the