Calkins v. Liggett Drug Co., Inc.

• Decision Date: 01 February 1938
• Citation: Calkins v. Liggett Drug Co., Inc., 124 Conn. 14, 197 A. 693 (Conn. 1938)
• Court: Connecticut Supreme Court
• Parties: CALKINS v. LIGGETT DRUG CO., Inc., et al.

197 A. 693

124 Conn. 14

CALKINS v. LIGGETT DRUG CO., Inc., et al.

Supreme Court of Errors of Connecticut.

February 1, 1938

Appeal from Superior Court, New Haven County; Kenneth Wynne, Judge.

Action by Elizabeth Calkins against the Liggett Drug Company Incorporated, and another, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The case was tried to the court. Judgment for plaintiff against the named defendant only, and appeal by that defendant and by the plaintiff.

No error.

Harry Krasow, of Waterbury, for plaintiff.

Martin E. Gormley, of New Haven, for named defendant.

Michael V. Blansfield and Harry M. Albert, both of Waterbury for defendant Thomas F. Moran & Sons, Inc.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

In this action the plaintiff seeks to recover of the named defendant, operator of a drug store, and of the other defendant, repairer under contract of an entrance thereto, for injuries sustained by a fall due to the claimed defective condition of the floor repaired. The named defendant is referred to herein as the defendant, and the other defendant as the contractor. These undisputed facts are found: In October, 1936, the defendant, which operated a corner drug store in Waterbury, contracted with the contractor for the alteration of a doorway to the store opening on North Main street. The alteration involved changing the hinges to the opposite side and rehanging the door thereon. This necessitated the removal of the bottom pivot hinge from the concrete floor in which it was imbedded, resetting it at the other side of the doorway, filling with a concrete mixture the depression left by its removal, and the substitution of a new metal threshold under the edge of the door. With the exception of installing the new metal threshold, the contractor did the work during the evening of Sunday, November 15, 1936. From the time this work began until the following morning the door was kept closed and a sign on it requested the public to use the other doorway. On the morning of November 16th the contractor inspected the work, tested the concrete that had been placed in the depression, and indicated its surface was reasonably safe for travel. The contractor completed the job by setting the metal threshold on December 23, 1936. At 5:15 p. m. November 16, 1936, the plaintiff, in entering the store, stepped on the place filled in with the concrete mixture, and fell sustaining the injuries complained of.

These further facts were properly found by the court upon the evidence. For some time prior to and at the time of the plaintiff's fall, the surface of the entranceway at the place where she fell, which had been walked over by people using it during the day, was depressed, defective, and unsafe for public use. The defendant had actual knowledge of this through its manager, who had caused particles of broken cement to be brushed back into the depressed surface. Notwithstanding its knowledge of this unsafe condition, the defendant permitted the entranceway to remain open for use by the general public, including the plaintiff, without giving notice of any kind of its unsafe condition. The defendant did not notify the contractor of the unsafe condition until after the plaintiff's fall. This condition of the floor caused the fall of the plaintiff who was in the exercise of due care.

Since the plaintiff does not press her appeal from the judgment in the contractor's favor except in the event the defendant prevails upon its appeal, unless the court erred in rendering judgment against the defendant, it is unnecessary to pass upon the judgment for the contractor. Rose v Heisler, 118 Conn. 632, 633, 174 A. 66. As counsel for the defendant conceded in argument, its liability in this case depended upon the essential factor that it had control over the place where the plaintiff fell and its use by the public. The trial court stated as one of its conclusions that prior to and at the time of the plaintiff's fall the defendant had control of it. If this is to be regarded as an inference drawn by the court from the subordinate facts it has found, they are sufficient to support it and the evidence adequately sustains those findings. An examination of that evidence, brought before us under the assignments of error seeking corrections in the finding, also shows that there was...