Howard v. Redden

CourtSupreme Court of Connecticut
Citation107 A. 509,93 Conn. 604
Decision Date16 July 1919
PartiesHOWARD v. REDDEN et al.

Appeal from Superior Court, New London County; John E. Keeler and William M. Maltbie, Judges.

Action by Nelson Howard, as administrator, against William H. Redden and George Gilbey. From a judgment in favor of defendant Gilbey after his demurrer to complaint was sustained and plaintiff refused to plead further, plaintiff appeals. No error.

Action to recover damages for death caused by a falling cornice brought against the builder, Gilbey, and the owner, Redden to the superior court for New London county, and tried to the court, Keeler, J., upon demurrer of Gilbey to the substituted complaint. The demurrer was sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendant Gilbey, from which judgment the plaintiff appealed.

The material facts, abbreviated from the substituted complaint are alleged as follows:

Redden owned a four-story brick building fronting on Bank street, a much-used street in New London; the front wall of the building being built upon the boundary line between the lot and Bank street. Upon the top of the front wall was a wooden cornice 3 feet wide, and 36 feet long, overhanging the sidewalk, and weighing 800 pounds. The defendant built this cornice for Redden. It was carelessly, negligently, and insecurely fastened to the wall, was unsafe and liable to fall by its own weight and by reason of such liability was intrinsically dangerous to persons passing on Bank street. The defendants did not use beams and bolts of sufficient size and strength in fastening the cornice to the wall, but negligently nailed the cornice with wire and cut nails of small and insufficient size to weak and insufficient furring strips, which strips were carelessly nailed to weak and insufficient pieces of timber built into the wall. The cornice was covered by a tin roof, carelessly flashed to the brick wall so that rainwater ran under it and rotted away the woodwork and furring strips and rusted away the nails.

The cornice was so constructed by said Gilbey that it would by natural action of the elements and from natural causes alone and by reason of its own weight and insecure fastening fall to said sidewalk.

The tin roof by natural causes became worn and rusted, and rainwater and other elements leaked into the cornice and rotted the woodwork and furring strips on the inner side of the cornice and rusted away the nails, by which the cornice was fastened to said furring strips and building.

The defendant Redden negligently and carelessly failed and neglected to inspect the cornice to determine its condition, and negligently and carelessly failed and omitted to remove the cornice from said building.

Because of the said negligences, acts, and omissions of the defendants, the cornice on September 16, 1917, fell from its place on the front of said building onto this plaintiff's intestate, then lawfully traveling on said highway in the exercise of due care and caution, and so injuring him that he died about an hour and a half after being struck by the cornice.

The plaintiff further alleged:

Each of the acts, negligences, and omissions of the defendants contributed to the fall of said cornice, and each of said acts, negligences, and omissions was a proximate and efficient cause, without the operation of which the falling of the cornice would not have happened.

To this complaint the defendant Gilbey demurred for the following reasons:

(1) The defendant George Gilbey was under no duty to the plaintiff for the reason that his contract to build was with the owner of the land and building, William H. Redden and said building and cornice were constructed and completed long before the injury to the plaintiff.

(2) Because the negligence of the defendant George Gilbey was not the proximate cause of the injury to the plaintiff, but was consequential and remote.

(3) Because the defendant George Gilbey had made no representations to the plaintiff that said cornice was safe or properly constructed, had no contractual or other relations with him, and had no occupation of said building or control over it or duty toward it at the time of said accident, and for a long time prior to that.

(4) Because it appears that there is no causal connection between the negligence of the defendant George Gilbey and the injury to the plaintiff.

(5) Because it does not appear from the complaint that the defendant George Gilbey owed any duty to the plaintiff.

The demurrer was sustained, the plaintiffs refused to plead further, and judgment was rendered in favor of the defendant Gilbey. The plaintiff appeals on the ground of error of the court in sustaining the demurrer.

Frank L. McGuire, of New London, for appellant.

Nathan Belcher, of New London, for appellee Gilbey.

GAGER J.

The complaint is somewhat obscure, and it requires close inspection accurately to get at the real relation of the various acts set forth.

The only connection the defendant Gilbey had with the cornice is that at some time he constructed the cornice for defendant Redden, owner of the building. For some reason-probably because it would not help the plaintiff's case-the complaint contains no allegation of time, except that Redden owned the building on the day of the accident. The complaint necessarily imports, however, that at some considerable time prior to the accident Redden owned the building, and that he then employed Gilbey to construct the cornice. We do not think that counsel for the plaintiff would claim that in the climate of New London tin roofs and nails rust out and woodwork rots overnight. It takes a considerable period of time, probably some years, for such rusting and rotting as to render these materials useless or insufficient for building purposes. At any rate, it appears, and is so alleged in the complaint, that the cornice remained in place until by natural causes, rainwater and other elements, the rusting and rotting took place, with the final result that due to such rusting and rotting the cornice fell; and it further appears, and is so alleged, that defendant Redden failed and neglected to inspect the cornice to determine its condition, and failed and neglected to remove the cornice. Whether Gilbey in doing the work was acting as independent contractor or as the servant of Redden does not clearly appear. We assume that it is intended to hold Gilbey as a contractor. It is not alleged that Gilbey had anything whatever to do with the building after the construction of the cornice. The necessary inference of fact is that he did not. His is the ordinary case of a contractor or carpenter doing a job upon a building at the request of the owner, and thereafter having nothing to do with it. It is further to be presumed, from the acceptance and use necessarily implied from the other allegations of the complaint, that the cornice was constructed as the owner directed, or at least to his satisfaction. Whether the original contract was well done or not, it distinctly appears, and this is the controlling factor in the case, that the fall of the cornice was not due to the condition the contractor left it in, but to the neglect of the owner Redden to inspect and guard against the result of rusting and rotting that inevitably takes place in every structure in which nails, tin, and wood are used. The structure stayed up so long as the materials did not rust and rot out.

The reasoning of Miner v. McNamara, 81 Conn. 690, 72 A 138, 21 L.R.A. (N. S.) 477, is conclusive of the present case. In that case the Hubbell Company was alleged to have negligently constructed a warehouse. It was delivered to the owner, who knew the negligent construction and that the building was unsafe. the owner leased to the plaintiff without disclosing the condition of the warehouse, and the building collapsed from its inherent weakness about a month after plaintiff took possession. This presents a much stronger case for the plaintiff than the present, for the collapse was due to conditions existing when the Hubbell Company turned over the building to the owner, and was not due to a supervening natural deterioration negligently allowed by the owner to proceed to the point of collapse, when reasonable inspection and care by the owner would have prevented it. Yet this court held that the Hubbell Company was not liable on the ground that its negligence was not the proximate cause of the...

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