Krowka v. Colt Patent Fire Arm Mfg. Co.

• Decision Date: 21 July 1939
• Court: Connecticut Supreme Court
• Parties: KROWKA v. COLT PATENT FIRE ARM MFG. CO.

8 A.2d 5

125 Conn. 705

KROWKA v. COLT PATENT FIRE ARM MFG. CO.

Supreme Court of Errors of Connecticut.

July 21, 1939

Appeal from Superior Court, Hartford County; Partick B O'Sullivan, Judge.

Action by Charles Krowka against Colt Patent Fire Arm Manufacturing Company to recover damages for personal injuries alleged to have been caused by an illegal assault by the defendant's agents brought to the Superior Court and tried to a jury. From a verdict and judgment for the plaintiff, defendant appeals.

Error and new trial ordered.

Lucius F. Robinson, Jr., and James M. Carlisle, both of Hartford for appellant.

Morton Cole, Cyril Cole, and A. W. Firestone, all of Hartford, and John Henry Sheenhan, of New Haven, for appellee.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

BROWN Judge.

The defendant's factory buildings extend along the easterly side of Hudyshope Avenue in Hartford both northerly and southerly from the intersection of Sequassen Street. On April 26, 1935, a strike of the defendant's employees had been in effect for several weeks. At the outbreak of the strike the chief of the Hartford police department detailed policemen to the vicinity to preserve order. Deeming the protection inadequate, the defendant requested that additional men be detailed and assigned to the gates, boiler house and other designated places. Supernumerary policemen were furnished pursuant to this request upon the defendant's agreement to pay their wages, which it did through the police department. James Newcomb, Jr., employed as a supervisor in the defendant's plant, was during the strike also employed by the defendant to transport employees who continued at work, from their homes to the plant, which was being picketed, and back again, and also employees living in the plant upon various errands after working hours. The defendant provided him with a car which he used for the purpose. At about 9 p. m. on April 26 inside the Sequassen Street gate of the defendant's plant east of the intersection, three of these supernumerary officers requested Newcomb to drive them by a round-about course to the southwest corner of the two streets, in an effort to surprise and arrest persons alleged to have caused trouble for employees of the defendant. Newcomb transported them as requested and upon their arrival the eighteen year old plaintiff was standing on the corner. As the officers jumped out of the car and started toward him, the plaintiff ran south on Huyshope Avenue, darted between two houses, and in the dark ran against a fence and broke his leg. Overtaking him, the officers placed him under arrest, and took him to the hospital in the car driven by Newcomb. These facts were undisputed. The plaintiff claimed further that the defendant had provided Newcomb with the car to engage in counter strike activities and that his acts at the time in question were within the scope of his employment, as were also those of the supernumeraries who were likewise the defendant's servants; that he brought the car to a sudden stop at the corner within five feet of the plaintiff as he stood there; that all four men jumped out, cursing and threatening the plaintiff and approached him brandishing night sticks; and that he was frightened and ran, whereupon they followed in hot pursuit.

The court instructed the jury that liability of the defendant could be predicated upon an unlawful act or assault committed, either by the Supernumeraries provided they found them to have been servants of the defendant acting within the scope of their employment at the time, or by Newcomb provided they found him to have been the defendant's servant then acting within the scope of his employment. The defendant does not complain of the court's charge relating to the defendant's liability upon the latter ground. It does, however, assign as error the court's refusal to charge that the defendant was not liable for the acts of the supernumeraries because they acted under orders of the Hartford police department, and also its instructions given that it was for the jury to determine whether the supernumeraries were servants of the defendant. Although the defendant made no request that the jury be required to state upon whose acts their verdict was predicated, assault by its agents being the only possible basis of the defendant's liability, this case is not one where the plaintiff was relying upon grounds of action which were distinct in the essential basis of the right involved, but rather only in the specific sets of facts related thereto which formed a part of the transaction. The general verdict for the plaintiff therefore does not obviate error in the charge relating to the defendant's liability of acts by the supernumeraries as its agents. Ziman v. Whitley, 110 Conn. 108, 115, 147 A. 370. The first question to be determined, therefore, is whether the court did err in charging as to the defendant's liability for the acts of the supernumeraries.

The defendant is entitled to a correction of one vital paragraph of the finding pertaining to this issue. This sets forth a conclusion, predicated upon acts of the defendant and the attendant circumstances which the plaintiff offered evidence to prove and claimed to have proved, stating that the supernumeraries were employed by the defendant and were acting within the scope of their employment at the time the plaintiff was assaulted. These acts and circumstances claimed proven by the plaintiff as shown by the finding are insufficient to sustain this conclusion and it must therefore be stricken out. As corrected, the finding shows that all that the plaintiff claimed to have proven upon this issue, in addition to the facts included among those already referred to as undisputed, are the following: the protection requested of the police department by the defendant was for its employees remaining at work and for its plant and property; at or about 8 o'clock in the evening, the picketing having ceased for the day, it was not necessary to have any regular policemen on duty on the streets adjoining the plant other than the one or two patrolmen ordinarily assigned; during the strike the defendant ordered the operator of the restaurant on its premises to feed at its expense the supernumerary policemen who were there in uniform and this was done, the three officers charged with the assault on the plaintiff being among the number; the defendant directed counter strike activities from the Scale house at its Sequassen Street entrance and the supernumeraries reported there to their captain who was allowed to use space therein while on duty up to 6.30 p. m.; the three supernumeraries in approaching the plaintiff proceeded without any legally issued warrant and were not acting on speedy information of any offense committed; as they alighted from the car, they addressed profane and threatening language to the plaintiff and threatened him with their night sticks; he was frightened and ran and they followed in hot pursuit; and the plaintiff neither on that night nor at any time had participated in any violation of the law.

The defendant offered evidence to prove and claimed to have proved these further facts: The operation of the picket lines caused substantial disturbance to the peace, endangered the property of the defendant and of others in the vicinity, and engendered well founded fears of riot and bloodshed; the supernumeraries detailed by the chief of the Hartford police department to strike duty reported daily at 4 p. m. to the captain or lieutenant who had been originally assigned there with other police officers, wherever he happened to be at the time; they were posted by him and instructed to cover certain territory for the purpose of maintaining order therein, and at all times were subject solely to the orders of the officers of the Hartford police department; among these supernumeraries were the three charged with assaulting the plaintiff who were assigned to beats on...