Hedderman v. Robert Hall of Waterbury, Inc.

• Decision Date: 01 July 1958
• Citation: 144 A.2d 60,145 Conn. 410
• Court: Connecticut Supreme Court
• Parties: John J. HEDDERMAN et al. v. ROBERT HALL OF WATERBURY, Inc. Supreme Court of Errors of Connecticut

Page 60

144 A.2d 60

145 Conn. 410

John J. HEDDERMAN et al. v. ROBERT HALL OF WATERBURY, Inc.

Supreme Court of Errors of Connecticut.

July 1, 1958.

Arthur Levy, Jr., Bridgeport, with whom, on the brief, was Irwin E. Friedman, Bridgeport, for the appellant (defendant).

James T. Healey, Waterbury, with whom, on the brief, were Patrick Healey and Frank T. Healey, Jr., Waterbury, for the appellees (plaintiffs).

Before DALY, C. J., and KING, MURPHY and MELLITZ, JJ., and SHEA, Superior Court Judge.

KING, Associate Justice.

On or about September 1, 1955, the plaintiffs, a partnership, entered in to a contract with the defendant for the installation of a new roof on its retail clothing store in Waterbury at the agreed price of $2773. In a letter confirming the acceptance of the plaintiffs' bid, the defendant stated that the work was 'to be done in such a manner so that at the completion of each day's work the roof will be tight' and 'so as not to interfere with the operation of the store.' The roof, when completed, conformed to the specifications of the contract, but it is admitted in the pleadings that the defendant has paid only $1231.11. In this action the plaintiffs seek recovery of the balance of the contract price. The answer denied the paragraph of the complaint alleging performance of the contract. It was the defendant's claim that the plaintiffs 'had not substantially performed their contract and had breached' it because certain merchandise in the store, as well as the interior ceiling, had been damaged during the course of the work by the leakage of rain water and tar through the roof.

The court in effect found that the water leakage, which caused most of the damage complained of, had been through the old roof and, inferentially at least, that the leakage of the tar was not a breach of the contract as such. Thus the court's conclusion that the plaintiffs had substantially performed their contract was supported. No changes can be made in these findings.

In addition to its answer, the defendant interposed a counterclaim seeking damages for injury to its merchandise and to the interior ceiling caused by the plaintiffs' negligence in the performance of the contract. This raised again the claim of an injury as the result of leakage of rain water and tar, but here the cause of action was based on negligence, under the rule of cases such as Dean v. Hershowitz, 119 Conn. 398, 409, 177 A. 262; Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292, and Bifield v. Bruner-Ritter, Inc., 144 Conn. 747, 748, 137 A.2d 751. There may, of course, be situations where even though there is no breach of a contract, a liability arises because of injury resulting from negligence occurring in the course of the performance of the contract. Dean v. Hershowitz, supra, 119 Conn. 405, 177 A. 265; 12 Am.Jur. 1042, § 458. This liability arises from an application of the broad rule that the duty to exercise reasonable care arises whenever the activities of two persons come so in conjunction that the failure by one to exercise that care is likely to cause injury to the other. Borsoi v. Sparico, 141 Conn. 366, 370, 106 A.2d 170.

The court allowed damages under the counterclaim in the total amount of $88.85, based on the leakage of tar. It found that the plaintiffs were entitled to recover under the complaint the entire unpaid balance of $1541.89 less a credit of $88.85. No question is raised as to the form of the judgment, in which the amount found due under the counterclaim was credited against the amount found due under the complaint, and the actual judgment was rendered solely on the complaint in the amount of $1453.04 with interest, making a total of $1562, together with costs.

Since, on the counterclaim, the court disposed of the issues having to do with the claimed injuries from water leakage on the basis of a failure to prove compensatory damages, we pursue the same course here. While the court in its judgment did not allow even nominal damages under the counterclaim for these claimed injuries, this is not a case where a new trial would be granted merely to permit the recovery of nominal damages. Schmeltz v. Tracy, 119 Conn. 492, 496, 177 A. 520. Therefore we can confine the discussion to the claimed errors in the refusal to award compensatory damages.

Under its counterclaim, the defendant had the burden of proving actionable negligence in order to recover even nominal damages. Parker v. Griswold, 17 Conn. 288, 302; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918. To recover compensatory damages, the defendant had the further burden of proving the nature and extent of the damage proximately caused by the plaintiffs' negligence and the reasonable amount of the losses resulting therefrom. Stanton v. New York & E. Ry. Co., 59 Conn. 272, 282, 22 A. 300...