Fogarty v. M. J. Beuchler & Son, Inc.
| Decision Date | 05 May 1938 |
| Citation | 124 Conn. 325,199 A. 550 |
| Parties | FOGARTY v. M. J. BEUCHLER & SON, Inc. |
| Court | Connecticut Supreme Court |
Error from Superior Court, Fairfield County; Kenneth Wynne, Judge.
Action by Clarice Fogarty, administratrix of the estate of James Fogarty, deceased, against M. J. Beuchler & Son, Inc., to recover damages for the death of plaintiff's intestate allegedly caused by defendant's negligence. There was a verdict and judgment for plaintiff, and defendant appeals from an order refusing its motion to set the verdict aside.
Error and case remanded, with direction to grant motion to set verdict aside.
Raymond E. Baldwin, of Bridgeport, for appellant.
William Dorkin and George N. Foster, both of Bridgeport, for appellee.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
The plaintiff brought this action as administratrix on the estate of her little son. He died as a result of being burned by hot water which escaped by reason of the breaking of a pipe leading to the bathtub in an apartment occupied by the family, in a tenement house owned by the defendant. There is little conflict in the testimony material to the issues presented upon the appeal. The father of the little boy was janitor of the tenement house. On Saturday night he moved from an apartment he had occupied to that where the accident occurred. The next morning the plaintiff found that the water was shut off from the bathtub. When her husand turned it on, a leak appeared in the cold water pipe in a joint close to the tub. He secured a wrench and, according to his testimony, when he was engaged in tightening the joint, the handle of the wrench struck the hot water pipe near the tub a light blow. That pipe broke at a point some three or four feet away, where it screwed into a shut-off close to the wall of the bathroom. The hot water, forced by pressure through the break, struck the little boy and caused the burns from which he died.
The defendant has appealed from the refusal of the trial court to set aside a verdict rendered for the plaintiff. Assuming that the pipe was so within the control of the defendant that it owed to the deceased the duty to keep it in repair, the measure of that duty at common law would be to use reasonable care to see that the pipe was in a reasonably safe condition and a failure in that duty would only arise if it knew or ought to have known that the pipe might break. Reynolds v. Land Mortgage & Title Co., 114 Conn. 447, 451, 159 A. 282; White v. DeVito Realty Co., 120 Conn. 331, 335, 180 A. 461; Drible v. Village Improvement Co., 123 Conn. 20, 23, 192 A. 308, 309. The statute provides that ‘ each building used as a tenement, lodging or boarding house and all parts thereof shall be kept in good repair.’ General Statutes, § 2563. By this provision the Legislature could not have intended to make the owner of such a tenement house liable for injury due to defects in portions of the building which it was his duty to repair, unless he knew of them or ought to have discovered them by reasonable inspection. Annis v. Britton, 232 Mich. 291, 294, 205 N.W. 128; and see Iudica v. DeNezzo, 115 Conn. 233, 238, 161 A. 81; McNulty v. Sherman Realty Corp., 123 Conn. 335, 194 A. 726. In Altz v. Leiberson, 233 N.Y. 16, 18, 134 N.E. 703, a statute quite similar to our own was so construed and while we have declined to follow that decision in its application of the statute to conditions in a tenement over which the landlord retained no control, we agree with its conclusion in the respect we are now considering. There was no evidence that the defendant knew of the defect in the pipe which caused the break. In this situation, either under the common law or the statute, the first question presented in considering the question of the denial of the motion to set the verdict aside is, could the jury have reasonably concluded that the defendant would be reasonable inspection have discovered the defect which caused the water to escape.
The plaintiff necessarily relies upon the fact that the pipe which broke was defective. She offers no explanation of that defect, except some testimony that the building had settled and that this was likely to put a strain upon the water pipe. She offered no testimony that any pipes in the building had been broken because of this fact nor any evidence of any settling of the building which in any way affected the particular pipe which broke. The defendant offered expert testimony that the breaking of the pipe was due to a process of dezincification, by which the zinc in brass pipes is destroyed and which progresses from the inside of the pipe toward its outer surface, and that it would have been reasonably discoverable only by an expert or by a plumber who had had experience with a similar condition and who would anticipate its possible presence because other brass pipes in the building had leaked at the joints. The plaintiff offered general testimony that the plumbing in the building was in bad condition and frequent repairs had been necessary. The cold water pipes throughout the building were for the most part made of lead, while the hot water pipes were of brass; and there was no evidence, except in two instances, that repairs had been made to the latter, and nothing to indicate that in these instances the defects produced leaking at the joints.
In order to establish liability upon the defendant it would not be enough to show that it had or ought to have had knowledge that the plumbing in the building was generally in a bad condition, although such knowledge might have been relevant upon the amount of care it was bound to use in inspecting the plumbing for particular defects; the burden was on the plaintiff to prove that the defendant knew or ought to have known of the particular defect which caused the accident and taken steps to prevent the breaking of the pipe at that particular place. Drible v. Village Improvement Co. supra; Jainchill v. Schwartz, 116 Conn. 522, 525, 165 A. 689. The nature of the break was such that, so far as anything in the record shows, the defect would not have been reasonably discoverable had the pipe been examined the moment before it broke. There was no evidence from which the jury could reasonably have found that by reasonable inspection the defendant would have learned of the defect. Wenischv. Wetherall, 109 Conn. 735, 146 A. 612. Unless the plaintiff can establish a right to...
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