Hourigan v. City of Norwich

• Decision Date: 16 December 1904
• Citation: 59 A. 487,77 Conn. 358
• Court: Connecticut Supreme Court
• Parties: HOURIGAN v. CITY OF NORWICH.

59 A. 487

77 Conn. 358

HOURIGAN

v. CITY OF NORWICH.

Supreme Court of Errors of Connecticut.

Dec. 16, 1904.

Appeal from Superior Court, New London County; George W. Wheeler, Judge.

Action by Michael H. Hourigan, as administrator of the estate of one Hallahan, against the city of Norwich. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The finding for appeal in this case was filed April 19, 1904, and within 10 days thereafter the appeal was duly taken and allowed. Between the date of the filing of the finding and the allowance of the appeal the defendant filed a motion to correct the finding. In pursuance of this motion the judge made certain corrections, and refiled the finding on September 7, 1904. After the refiling the defendant did not seek to alter or amend his appeal so taken and allowed on April 28th. The plaintiff pleaded these facts in abatement, claiming that under sections 791, 792 of the General Statutes of 1902 and section 104 of the rules of court the appeal taken on April 28th from the judgment rendered on February 16, 1904, is void. A demurrer to this plea in abatement was sustained, and the plea held insufficient.

Joseph T. Fanning, for appellant.

Jeremiah J. Desmond, for appellee.

HAMERSLEY, J. (after stating the facts). The finding discloses the following facts: The city of Norwich, in pursuance of authority granted by its charter, owns and operates a system of waterworks. By means of a reservoir constructed on its land outside the city limits water is collected, and this water is conducted to and distributed throughout the city, and sold by the city at a profit to itself, and is also used by the city for protection against fire and in promoting public health. The supervision and management of the waterworks is given to a board of water commissioners, subject to certain control by the city council, and these persons are treated as a corporation for the purpose of suing and being sued in a limited class of cases, not including this action. The city authorized an enlargement of its reservoir, including changing and raising the roadway surrounding the same. The work upon this roadway was done by the city under the general supervision of its board of water commissioners, acting by their president, and the board placed a superintendent Mr. Dodd in complete charge of this work. Mr. Dodd had power to employ and discharge all men employed, having for this work 224 men, including section bosses or foremen, and 16 teams. All men employed were paid weekly by the city. Mr. Dodd was a competent man for this position, and was paid weekly by the city for the time he actually worked. For the purpose of obtaining material to raise and fill the roadway, it became necessary to remove a bank nearby, which was some 17 feet in height. The plaintiff's intestate, Hallahan, worked as a laborer, and was required to shovel earth into a cart standing at the foot of this bank, which had been undermined through the digging at its base by a gang of men under a section boss named Carroll. While so at work the top of the bank suddenly gave way, bringing down a great mass of earth, by which Hallahan was covered so that he died from suffocation. Hallahan did not know of the danger threatening him, and was in the exercise of ordinary care under the circumstances of the case. The section boss, Carroll, was not competent, and Dodd did not exercise ordinary care in his selection. The bank was not removed in the proper way, but in a way which tended to make the bank during the process of removal dangerous to those lawfully in its neighborhood, and it was not removed in the method required by ordinary care. In the removal of the bank as done by the defendant, ordinary care required reasonable and diligent inspection of the bank by the superintendent in charge, and the employment of a foreman in control of said work and men who were competent to conduct such work. There was neither by Dodd nor Carroll, nor by any one acting for the defendant or the board of water commissioners, suitable supervision and inspection of the work of removing said bank to see that it was conducted in a proper and reasonably safe manner.

The plaintiff brings this action to recover from the defendant damages for injury thus done to his intestate. The complaint, after stating that the city owned the waterworks system, land, and reservoir, and was engaged for its own profit in selling the water, and was engaged, through its officers, servants, and agents, in the work of enlarging the capacity of said reservoir, alleges, in paragraph 3, that the defendant, in the prosecution of said work, had before December 1, 1902, been engaged in removing the earth from a bank on its said land; and in paragraph 4, that the defendant on said day, through its servants and agents in charge of the work of removing said bank, which servants, to the knowledge of the defendant, were incompetent for that purpose, had negligently removed the material at the bottom of said bank, and negligently failed to cause to be supported or broken down and removed the overhanging top thereof, which had become dangerous and insecure and liable at any time to fall and endanger the lives of the workmen removing the material from the bottom of said bank—all of which was known, or would have been known, by the exercise of reasonable care, to the defendant; and the defendant had negligently failed to provide suitable regulations and to adopt a suitable system of supervision and inspection by a competent person for the inspection of said bank, to discover its dangerous condition and for the prosecution of said work; and in paragraph 5, that on said day Hallahan, the plaintiff's intestate, then in the defendant's employ as an ordinary laborer, was set to work at the foot of said bank shoveling material therefrom into carts; that said Hallahan had no knowledge of the facts stated in paragraph 4, and was acting with all due care on his part; in paragraph 6, that while Hallahan, with other workmen, was shoveling material at the foot of said bank into carts, suddenly and without warning the top of said bank, consisting of many tons of earth, broke off and fell, and said Hallahan was thereby so covered and buried in said material that he was suffocated and soon died therefrom; in paragraph 7, that the defendant, through its negligent acts and omissions above set forth, negligently caused the said injuries to said Hallahan.

The defendant demurred to the complaint; the material reasons assigned, and the only ones deserving special mention, being (1) that it appears from the complaint that the acts charged were done by the board of water commissioners and not by the defendant; (2) that it appears from the complaint that in prosecuting the work described the city was performing a public governmental duty. The trial court overruled the demurrer, and the defendant assigns this action for error.

The plaintiff in his brief contends that this error, if it be one, cannot be considered on this appeal, because the court, after the demurrer was overruled, ordered a default to be entered; citing in support of his contention New York, N. H. & H. R. Co. v. Hungerford, 75 Conn. 76, 52 Atl. 487. That case is a writ of error to reverse a judgment of the superior court recited in the writ, by which judgment it appeared that the defendant (plaintiff in error) had voluntarily suffered a default and moved for a hearing in damages, that the court allowed the motion, and, having heard the parties, assessed substantial damages. The defendant (plaintiff in error) made default, moving at the same time for a hearing in damages after his demurrer to the complaint had been overruled. We held that the plaintiff in error, by his default of appearance and motion to be heard in damages, had practically withdrawn his demurrer, and stood substantially in the same position as if no demurrer had been interposed before his default; and further held that the claim that the judgment sought to be reversed was erroneous, because based upon a complaint bad in substance and insufficient in law to support any judgment, could not be urged, inasmuch as this error was not specifically assigned in the writ, and that in the case disclosed in the writ of error before us the rule requiring specific assignment should be strictly enforced.

In this case the defendant has not made default of appearance. It is not clear for what reason the court ordered a default to be entered. If there was no reason except that the defendant did not choose to avail himself of the privilege given him by the statute of 1872, of filing an answer to the complaint after demurrer overruled, the order was unnecessary and improper. But this question is not a material one in the present case, because in an action for negligence, claiming unliquidated damages, when a defendant, either after a default or demurrer overruled, moves for a hearing in damages, giving notice of his intention to disprove, on that hearing, the material averments of the complaint, and to prove matters of defense, and upon the hearing substantially tries the case upon its merits, he must be held to have waived, by this action, any right to question the sufficiency of the complaint by reason of defects which are not matters of substance. But if in such case the complaint is bad in substance, and does not state any cause of action, a judgment for the plaintiff will be erroneous, and such error may be reversed upon appeal. New York, N. H. & H. R. Co. v. Hungerford, 75 Conn. 76, 52 Atl. 487. In this case we think the defendant's claim that the complaint, for the material reasons assigned in his demurrer, is bad in substance and insufficient in law to support any judgment for the plaintiff, was fairly raised before the trial court and heard and determined against the defendant, and that under the circumstances appearing in the appeal the alleged error should be reviewed. We also think...