5 Conn. Cir. Ct. 142 | Conn. App. Ct. | 1968
This action was brought on a common counts writ to recover the value of services rendered and materials furnished the defendants by the plaintiff in the installation of a septic tank system on property of the defendants as set forth in a bill of particulars. In their answer, the defendants deny the claim and by way of a counterclaim allege that the plaintiff failed to perform the work according to his agreement; that the installation was performed in an unworkmanlike manner; that the plaintiff broke his warranty of fitness; and that he did defective work and then abandoned it and it became necessary to hire another contractor to complete the original agreement. The defendant Joseph acted for both himself and the codefendant, his wife, and he will be hereinafter referred to as the defendant. In his reply, the plaintiff left the defendants to proof of their allegations.
The defendants have assigned error in the denial of their motion to correct the finding by adding
Although the defendants sought many corrections in the finding, it is apparent that the finding as rendered is adequate to review their assignments of error. Some of the assignments which were directed to the finding relate to evidence claimed to have been elicited from an expert witness for the defendants, Marvin L. Smith, of the state health department, who qualified as a sanitary engineer. The questions asked him by the defendants related to the application of certain regulations appearing in a pamphlet of the state department of health entitled “Private Sub-Surface Sewage Disposal” and admitted into evidence. Some of the questions were of a hypothetical nature, while others dealt with possibilities. Still other questions sought answers of little probative value without there first having been evidence of the soil seepage rate, and there was no evidence of that. As to the effect of uncontradicted testimony of an expert, see Chazen v. New Britain, 148 Conn. 349, 352, and cases cited in Holden & Daly, Connecticut Evidence § 118c.
It appears that the defendants were attempting to show that the plaintiff in some measure violated the state health code and that such conduct was negligence per se. Parenthetically, it might be noted that the counterclaim contains no allegation relating to a violation of the health code; however, the evidence appears to have come in without objection by the plaintiff. Perhaps the most enlightening evidence on this matter was elicited from Smith on direct examination. He was asked a hypothetical question which included physical characteristics
The finding, which is not subject to correction, indicates that in the spring of 1964 the defendants were in the process of building a dwelling house on
The court concluded: The faulty operation of the septic system arose from the flow of surface or subsurface waters onto the defendants’ land from surrounding land because of the topography of the area. These conditions were not caused by improper installation or deficient workmanship or failure of performance. The defendants failed to meet their burden of proof in establishing their counterclaim. There was no express guarantee or implied warranty on the plaintiff’s part that the system would function under all conditions.
The defendants took exception to several of the court’s rulings on evidence. A defendants’ witness was asked on direct examination, “And what is the custom in the trade as far as the contractor is concerned prior to installing the sanitary system?” The witness answered the question at some length. Later, the witness was asked by the defendants, “Now, in regard to, not talking about building permits, but in regard to talking about the sewage disposal system, what is the practice in the trade concerning the contractor, the sewage disposal contractor?” The court ruled that the question had been
The defendants’ basic claims of error are directed to the court’s conclusions. The substance of these conclusions is that the malfunctioning of the system was not caused by the plaintiff’s fault by reason of improper installation, deficient workmanship or failure of performance but arose from the flowage of either surface or subsurface water onto the defendants’ land from surrounding land because of the topography of the area. These findings are conclusive unless they are legally or logically inconsistent with the subordinate facts found, or involve the application of some erroneous rule of law material to the case. Davis v. Margolis, 107 Conn. 417, 422; Maltbie, Conn. App. Proc. § 166. The defendants contend that there was evidence showing that the plaintiff should have reasonably foreseen the situation which developed when surface water
The defendants offered evidence through Smith, who gave an opinion “to the effect that under the circumstances of ground and slope, my opinion is that the trenches should have been installed.” LaRosa, when asked a hypothetical question as to whether he would take some precaution to prevent surface water from draining on a sanitary system if such a system was installed at a lower level than that of adjoining property, went no further than to state that he would make recommendations to the owner. We cannot hold that on this type of evidence the court erred in concluding that the defendants
There is no error.
In this opinion Monkiewicz and Macdonald, Js., concurred.