Connecticut Co. v. Mongillo
| Decision Date | 07 January 1957 |
| Citation | 128 A.2d 528,144 Conn. 200 |
| Court | Connecticut Supreme Court |
| Parties | The CONNECTICUT COMPANY v. David MONGILLO et al. Supreme Court of Errors of Connecticut |
Clarence A. Hadden, New Haven, with whom, on the brief, was William L. Hadden, New Haven, for appellant (defendant London Guarantee and Accident Co., Ltd.).
Thomas P. Hackett, New Haven, with whom, on the brief, were Edwin H. Hall and John M. Toohey, Jr., New Haven, for appellee (plaintiff).
Before INGLIS, C. J., BALDWIN, WYNNE, DALY and SHAPIRO, JJ., and SULLIVAN, Superior Court Judge.
In this action the plaintiff seeks to recover such damages as will reimburse it for what it was obliged to pay out in defending and settling a negligence action in which it was named as one of three defendants. The present complaint was in two counts; one, against the named defendant for breach of contract, and the other, against the defendant insurance company for failure to enter and defend an action brought against the plaintiff for negligently injuring a third party, Grace N. Smith. The case at bar was submitted on the pleadings and a stipulation of facts made in court. While a finding was thereafter made on appeal, it serves only to clarify the ultimate question that the trial court was called upon to decide. The trial court rendered judgment for the plaintiff to recover damages from the defendant Mongillo for breach of contract and from the defendant London Guarantee and Accident Company, Ltd., upon a policy of public liability insurance. The latter defendant only has appealed.
The following facts appear from the pleadings and the stipulation. On October 13, 1948, Mongillo entered into a contract with the plaintiff. By its terms Mongillo agreed to remove certain trolley poles in New Haven, to fill the holes with sand or gravel, and to cap them temporarily with bituminous macadam wherever poles had been removed from concrete sidewalk locations. On or about May 23, 1949, Mongillo removed a trolley pole from a concrete sidewalk on Church Street in New Haven. The removal left a hole in the sidewalk which Mongillo failed to cap with bituminous macadam. The hole was approximately three feet square, and because it had not been capped there was a depression, the surface being about one and one-half inches below the level of the sidewalk. On June 2, 1949, at about 4:29 p. m., Grace N. Smith, walking on the sidewalk, tripped in the hole and was injured. Prior to June 2, 1949, as well as on that date and for some months subsequent thereto, the contract between the plaintiff and Mongillo was in effect. During this time Mongillo was prosecuting the work to be performed by him in the removal of trolley poles and had not completed their removal. On July 18, 1949, Grace N. Smith brought suit against Mongillo, the city of New Haven and the plaintiff.
In accordance with the provisions of the pole-removal contract between the plaintiff and Mongillo, the latter had purchased a policy of public liability insurance from the defendant London Guarantee and Accident Company, Ltd., in which the plaintiff was named as the insured. The policy covered trolley pole removal operations, as evidenced by an indorsement attached. The policy and the indorsement were in force when Grace N. Smith sustained her injuries. When her suit was commenced, notice thereof was given to the insurance company. On September 12, 1949, it notified the plaintiff that it would appear and defend the suit. It subsequently withdrew its appearance, however, and notified the plaintiff that it would not defend the suit. The suit was settled on or about December 11, 1951, by voluntary agreement, the plaintiff paying $1000, Mongillo $250, and the city of New Haven $250.
The trial court concluded that the insurance company was aware of the provisions of the contract between the plaintiff and Mongillo, that Mongillo had not abandoned operations at the place where Grace N. Smith fell, and that the plaintiff was entitled to recover $1000 from Mongillo for breach of contract and to recover $1000 from the insurance company, with interest of $220 and a reasonable...
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...operations and left the premises. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605, 609 (1950); Connecticut Co. v. Mongillo, 144 Conn. 200, 128 A.2d 528 (1957). In this view of "completed operations," Division 4 does not apply as an exclusion, even if we indulge defendant's ......
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