Kaplan v. Merberg Wrecking Corp.

• Decision Date: 25 February 1965
• Citation: 152 Conn. 405,207 A.2d 732
• Court: Connecticut Supreme Court
• Parties: Oscar B. KAPLAN, Executor (ESTATE of Sarch L. KAPLAN), et al. v. The MERBERG WRECKING CORPORATION. Supreme Court of Errors of Connecticut

Page 732

207 A.2d 732

152 Conn. 405

Oscar B. KAPLAN, Executor (ESTATE of Sarch L. KAPLAN), et al. v. The MERBERG WRECKING CORPORATION.

Supreme Court of Errors of Connecticut.

Feb. 25, 1965.

Donald F. Keefe, New Haven, for the appellants (plaintiffs).

William L. Hadden and Jack Evans, New Haven, with whom, on the brief, was Clarence A. Hadden, New Haven, for the appellee (defendant).

Before KING, C. J., MURPHY, ALCORN, COMLEY and SHANNON, JJ.

KING, Chief Justice.

This is an action in which the plaintiffs seek to recover from the defendant corporation, hereinafter referred to as Merberg, the amount of a judgment rendered against them in the case of Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 172 A.2d 917, together with counsel fees and other costs incurred in defending that action and in prosecuting this one. The Bonczkiewicz case involved negligence actions for personal injuries and wrongful death which arose when pedestrians on the sidewalk were struck by a portion of the front wall of a burned out building, owned by the present plaintiffs and then being razed by Merberg, as an independent contractor. After all other defendants in that case, including Merberg, had settled the claims against them and obtained covenants not to sue, verdicts totaling $22,500 over and above the settlements which the plaintiffs in the Bonczkiewicz case had received were returned against the present plaintiffs, who were then the only defendants left in that case. See Dwy v. Connecticut Co., 89 Conn. 74, 95, 92 A. 883, L.R.A.1915E, 800; Restatement, 4 Torts § 885(2) and (3).

The plaintiffs claim reimbursement for the amount of the judgment, which they have paid, on two theories: the first for breach of contract and the second on an implied obligation of indemnity for Merberg's claimed primary negligence. They claim that their contract with Merberg printed in the footnote, ¹ required Merberg to take all precautions necessary to protect the public, such as roping off the sidewalk; that Merberg breached its contract by failing to take such precautions; and that this breach gives rise to a right of reimbursement as damages for breach of contract. Merberg's obligation in contract was to 'erect a fence around the entire property to protect the passing public.' This he admittedly did. The fence was in conformity with the terms of the contract. The plaintiffs' claim that Merberg was chargeable with breach of contract, at least so far as an express term of the contract is concerned, is without merit, and the court properly overruled it. See Restatement, 2 Torts § 413(a).

Of course this contract was in no sense of the word a contract of indemnity, as such. See, for instance, cases such as Gilpatric v. National Surety Co., 95 Conn. 10, 19, 110 A. 545; Morehouse v. Employers' Liability Assurance Corporation, 119 Conn. 416, 424, 177 A. 568; City of Bridgeport v. United States Fidelity & Guaranty Co., 105 Conn. 11, 17, 134 A. 252; Town of Fairfield v. D'Addario, 149 Conn. 358, 361, 179 A.2d 826. Rather, it was an ordinary contract for the demolition of a building. If the plaintiffs have any right of indemnity, it arises by operation of law and not under any express provision of the contract.

The claim most stressed by the plaintiffs seems to be that something more than a fence was required, such as roping off or otherwise closing the sidewalk to pedestrian travel or erecting steel sheds over the sidewalk, and that Merberg was negligent in not providing this further protection. Bonczkiewicz v. Merberg Wrecking Corporation, supra, 148 Conn. 580, 172 A.2d 917. This claim is not based on any express contract obligation but on a liability arising from negligence in the performance of the contract. From this, at most, an obligation to indemnify might arise by operation of law. An obligation of that type, arising from a tort, such as negligence, is sometimes termed an implied obligation of indemnity. 27 Am.Jur., Indemnity, §§ 16, 18, 19; see, for instance, cases such as Waterbury v. Waterbury Traction Co., 74 Conn. 152, 163, 50 A. 3; Restatement, Restitution § 96.

It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise. See, for instance, cases such as Bifield v. Bruner-Ritter, Inc., 144 Conn. 747, 748, 137 A.2d 751; Wright v. Blakeslee, 102 Conn. 162, 165, 128 A. 113. And it sometimes happens that in such a situation an action is also maintainable in contract for breach of an implied obligation to exercise reasonable care in the performance of a contract. See cases such as Hickey v. Slattery, 103 Conn. 716, 719, 131 A. 558 (surgeon); Bridgeport Airport, Inc. v. Title Guaranty & Trust Co., 111 Conn. 537, 541, 150 A. 509, 71 A.L.R. 345 (title searching company); Loveland v. Aymett's Auto Arcade, Inc., 121 Conn. 231, 235, 184 A. 376 (installer of an oil burner). This court has adopted the view that the "[m]odern tendency is to make the fundamental nature of the obligation the test as to whether the action is founded upon either tort or contract." Dean v. Hershowitz, 119 Conn. 398, 405, 177 A. 262, 265 (quoting from Bohlen, Studies in the Law of Torts, 87).

In the absence, as here, of any express contract of indemnity, or breach of any express contract obligation, any claimed liability of Merberg for negligence in the performance of the contract, whether based on breach of an implied contractual obligation to use reasonable care or on the tort claim of negligence, as such, would, in the light of the judgment in the Bonczkiewicz case establishing, as to these plaintiffs, their own independent negligence, constitute a claim by them, as tort-feasors, for reimbursement from Merberg, as a tort-feasor. This would be true whether the negligence claimed in the performance of the contract was Merberg's failure to exercise reasonable care to guard pedestrians, or its failure to exercise reasonable care in the actual demolition of the building, as such. Thus, any technical error, if indeed there was any, in the court's conclusion that Merberg did not breach an implied contract obligation to the plaintiffs to exercise reasonable care in the performance of the contract would be immaterial since these plaintiffs, as tort-feasors, could recover indemnity from Merberg based on its negligence only by proving that Merberg's negligence was primary, under the rule of cases such as Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 542, 52 A.2d 862. See also note, 142 A.L.R. 727, 728 (supplementing the earlier annotation quoted in the Preferred Accident case). Indeed, it would appear that unnecessary complications were injected into an already overly complex case by the plaintiffs' separate claim for reimbursement under the theory of a breach of an implied contract to exercise reasonable care in the performance of the contract of demolition. See note, 97 A.L.R.2d 616, 625, 626, § 8.

We turn now to the plaintiffs' claim of a right of indemnity under a tort theory based on Merberg's claimed primary negligence. Ordinarily there is no right of indemnity or contribution between joint tort-feasors. Caviote v. Shea, 116 Conn. 569, 575, 165 A. 788. But this rule has certain exceptions, and the plaintiffs claim that the court was in error in failing to decide that they had brought themselves within the exception set forth in the case of Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., supra. Parenthetically it perhaps should be pointed out that both an implied obligation to indemnify and contribution are based on equitable principles. Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82. But indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others.

In this case, the principles governing the right to contribution and the right to indemnity are similar. Fidelity & Casualty Ins. Co. v. Sears, Roebuck & Co., 124 Conn. 227, 231, 199 A. 93, 117 A.L.R. 565; Waterbury v. Waterbury Traction Co., supra; 18 Am.Jur.2d, Contribution, §§ 1, 2; 27 Am.Jur., Indemnity, §§ 2, 18, 19; note, 60 A.L.R.2d 1366, 1368, 1369. Since the plaintiffs seek, not contribution or partial payment, but complete reimbursement for all loss and expenses arising from the litigation instituted against them in the Bonczkiewicz case, this is an action for indemnity rather than for contribution and was properly so treated by the parties. ² The plaintiffs claim that Merberg was chargeable in the Bonczkiewicz case with primary or active negligence, which was the real cause of the injuries and death for which the present plaintiffs were held liable in that case, and that the negligence for which they were held liable was merely secondary or passive negligence. See note, 97 A.L.R.2d 616, 619, 621, 622.

There can be no question that the Bonczkiewicz case is not res adjudicata as to Merberg in the present case, since Merberg was not a party to the judgment in that case. Fox v. Schaeffer, 131 Conn. 439, 448, 41 A.2d 46, 157 A.L.R. 132; Pierce v. Albanese, 144 Conn. 241, 261, 129 A.2d 606. The court below, however, was correct in looking to the Superior Court file and the opinion of this court to ascertain the basis on which the present plaintiffs were held liable in the Bonczkiewicz case. Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., supra; see Bailey v. Bussing, 28 Conn. 455, 459. It is settled law that 'an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and * * * if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the...