Minicozzi v. Atlantic Refining Co.

• Decision Date: 28 February 1956
• Citation: 120 A.2d 924,143 Conn. 226
• Court: Connecticut Supreme Court
• Parties: Michael MINICOZZI v. The ATLANTIC REFINING COMPANY. Supreme Court of Errors of Connecticut

Page 924

120 A.2d 924

143 Conn. 226

Michael MINICOZZI v. The ATLANTIC REFINING COMPANY.

Supreme Court of Errors of Connecticut.

Feb. 28, 1956.

Nicholas Katzenbach, Hamden, and Nelson Harris, New Haven, with whom was Joseph R. Apter, New Haven, for appellant (plaintiff).

David M. Reilly, New Haven, with whom was David M. Reilly, Jr., New Haven, for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

INGLIS, Chief Justice.

This is an appeal by the plaintiff from the denial of his motion to set aside a nonsuit and from the judgment of nonsuit rendered in an action for personal injuries. The appeal from the judgment was mere surplusage and added nothing. Hannon v. City of Waterbury, 106 Conn. 13, 14, 136 A. 876, 57 A. 402; Maltbie, Conn.App.Proc., § 118. The exclusive method of attacking the court's action in rendering a judgment of nonsuit is to appeal from the denial of the plaintiff's motion to set aside the judgment. General Statutes, Cum.Sup.1955, § 3183d.

The material allegations of the complaint are these: Preparatory to the execution of a formal lease between himself as lessee and the defendant as lessor, the plaintiff was operating, on January 17, 1952, a gasoline station owned by the defendant. The rent to be paid under the contemplated lease was to be obtained by an additional charge on each gallon of gasoline purchased by the plaintiff from the defendant. The defendant had placed the tools appurtenant to the station, including a certain socket wrench, at the disposal of the plaintiff and had both impliedly and expressly represented to him that the tools were in good shape and fit for use in the business of a gasoline station. These representations were made recklessly, without regard for their truth and without the examination that should have been made. The defendant should have known in the exercise of due care that the socket wrench was defective. On January 17, 1952, the plaintiff commenced to use the wrench while fixing a universal joint on an automobile. The locking device of the wrench was improper, and as a result the plaintiff was struck in the right eye by a portion of the wrench, causing the loss of the eye. The defendant was negligent in that (a) it permitted the plaintiff to go into possession of the tools, knowing that he would use them without first using reasonable care to see that they were in good shape; (b) it supplied a defective wrench to the plaintiff, knowing that the defect would cause danger; (c) it made oral representations, to be relied upon, as to the quality of the tools, without regard to the truth thereof; and (d) it failed to examine the tools both visually and by use before turning them over to the plaintiff.

Upon the evidence, taken in the light most favorable to the plaintiff, the jury might reasonably have found the following facts: On January 5, 1952, it was orally agreed between the plaintiff and a representative of the defendant that the defendant would lease a gasoline station on State Street in New Haven to the plaintiff and he would operate it on a so-called commission basis. This agreement was later reduced to writing, partly on January 11 and partly on January 28. It provided that the plaintiff would purchase from the defendant all gasoline and lubricants to be sold on the premises, paying for the lubricants net prices to be fixed by the defendant, and for the gasoline its retail price less four and one-half cents per gallon discount. The station was to be leased to the plaintiff for one year, the rental to be one and one-half cents for each gallon of gasoline delivered. The property leased included the 'equipment and apparatus' at the station, and the plaintiff agreed to 'maintain and make all repairs and replacements needed to the leased premises and the said equipment and apparatus.' In case any of the equipment or apparatus was damaged, lost or stolen, he was to replace or repair it. For the inventory of merchandise which the plaintiff took over and for the use of the equipment, he was to pay $10 per month and a sum equal to one-half of one cent on each gallon of gasoline delivered. A representative of the defendant told the plaintiff before he went into possession of the station that everything in the place, except the grease gun hose, was in perfect condition. Included in the equipment was a socket wrench. The plaintiff went into possession of the gasoline station and its equipment on January 11, 1952. On January 17 he he was engaged in repacking with grease the universal joint of an automobile. To do this, it was necessary for him to unscrew the nuts from eight bolts. For this, he used an open-end wrench. After completing the repacking, he undertook to replace the nuts on the bolts. For this operation he used a socket wrench which he took from the collection of tools that went with the station. As he was tightening one of the nuts, the socket wrench struck him in the eye. A few moments after the accident, the plaintiff and a friend examined the socket wrench and found that 'it wouldn't hold right when you tightened it down on the nut, it looked kind of worn.' The plaintiff had not previously used the wrench, and at the time he took over the station it was in the same condition as when he examined it after the accident.

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