Kaplan v. Merberg Wrecking Corp.

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

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.

[152 Conn. 407]

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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 [152 Conn. 405] KING, C. J., MURPHY, ALCORN, COMLEY and SHANNON, JJ.

[152 Conn. 408] 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,

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printed in the footnote, ¹ required Merberg to take all precautions[152 Conn. 409] 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 [152 Conn. 410] 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

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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).

[152 Conn. 411] 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 [152 Conn. 412] indemnity under a tort theory based on Merberg's claimed primary negligence. Ordinarily there is no right of...