Norwalk Gaslight Co. v. Borough of Norwalk

• Decision Date: 15 December 1893
• Citation: 63 Conn. 495,28 A. 32
• Court: Connecticut Supreme Court
• Parties: NORWALK GASLIGHT CO. v. BOROUGH OF NORWALK.

28 A. 32

63 Conn. 495

NORWALK GASLIGHT CO.

v. BOROUGH OF NORWALK.

Supreme Court of Errors of Connecticut.

Dec. 15, 1893.

Appeal from superior court, Fairfield county; Thayer, Judge.

Action by the Norwalk Gaslight Company against the borough of Norwalk for damages for injuries to plaintiff's pipes and mains. Judgment for defendant Plaintiff appeals. Reversed.

J. H. Perry and J. B. Hurlbutt, for appellant.

L. Warner and S. Tweedy, for appellee.

FENN, J. The plaintiff's complaint, as amended, contains three counts: in the first it is alleged, in paragraph 1, that the plaintiff was, in 1856, granted a charter of incorporation, empowering it to manufacture and sell gas in the town and borough of Norwalk for lighting streets and other purposes, and to lay down its gas pipes and appurtenances in the streets of said town or borough, and that under its charter it did lay such pipes in such streets, and has ever since maintained them there, and conducted its said business for which it was chartered. In the second paragraph it is stated that about July 6, 1887, the defendant borough began the construction of a general sewer system for said borough in the streets of said borough, wherein lay the plaintiff's said pipes, substantially completing said construction about November, 1888. The third and fourth paragraphs of said count contain averments of the defendant's negligence in the performance of said work, in the excavation of earth, blasting of rocks, and filling of trenches, and damage to the plaintiff by the needless breaking and injury of its pipes, and the escape of gas therein contained, and in the storage tanks, resulting therefrom, and expense in repairing, restoring and relaying pipes, and in superintending its lines, during the defendant's work of construction, thereby caused. The second count is similar to the first, except that in the third paragraph it is averred that "it suited the convenience of said defendant, in constructing said sewer system, to excavate the streets of said borough in excessively wide trenches, and keep the same open unusual and unnecessary lengths of time, and in such excavating, in many places, the defendant blasted out wide trenches through ledges of rock, using therefor dynamite and other high explosives, which blasting is an operation inherently dangerous and destructive to property, and demands of those engaging in it a high degree of care, skill, and prudence, duly to protect the property rights of others." In the third count, paragraphs 1 and 2 of the first count are adopted, and it is then averred that, "when constructing said sewers, the defendant, in consideration that the plaintiff would employ sufficient men and provide materials to secure the plaintiff's mains and pipes from injury which might result from the defendant's operations, and to repair said mains and pipes when broken or injured thereby, which injuries the defendant could and should provide against by exercising reasonable care in its said operations, agreed with the plaintiff, on demand, for a valuable consideration, to reimburse the plaintiff for all expense it might incur and labor it might expend for the proper security of its mains and pipes, and for the repair and restoration of the same when injured by the defendant as aforesaid. Pursuant to said agreement, the plaintiff performed work, incurred expense, and made disbursements to the amount of $1,000.85, all of which was made necessary by the defendant's operations aforesaid." An itemized bill of particulars under this count was also filed. To the defense of denial to all the counts, the defendant added second defenses to the first and second counts, respectively, which contained the following allegations: That public convenience and necessity required the construction of said sewers, and that they were constructed under and by virtue of authority given to the defendant by the state; that, when such construction was commenced, neither the defendant nor any of its officers or agents knew or were able to ascertain the location of the gas pipes of the plaintiff, and were therefore unable to so locate and construct said sewers as to avoid the said gas pipes, and locate and construct said sewers where said gas pipes were not located; that it was necessary to locate and construct said sewers where they were located and constructed, and to construct them in the way and manner in which they were constructed; that the plaintiff knew the location of said sewers, and where they were to be constructed, before such construction was commenced, and made no objection to such, location or construction; that the plaintiff might and should have taken up said gas pipes, and removed them to such places in said streets as were not used by the defendant in the construction of said sewers, and where they would not have been injured, yet the plaintiff neglected so to do, though thereto requested; that all the work done in the construction of said sewers "was done by contractors, who were acting under contracts which the defendant, by its proper officers, had before that time entered into under the advice of competent counsel, and the acts complained of by the plaintiff, if done, were done by said contractors, and not by or under the direction or procurement of the defendant;" and that the defendant, in all it did in the location and construction of said sewers, acted by its proper officers, in the discharge of a duty to and for the benefit of the public; that its acts were necessary, were done with reasonable care, and without negligence on its part. To these defenses, which were alike, the plaintiff demurred on the ground, in substance, that none of these matters alleged constituted a defense to the defendant, or exempted it from liability for negligence in the construction of the work; such negligence being, as claimed by the plaintiff, the gist of its action. But the court overruled the demurrers, and thereupon the plaintiff answered over, alleging in its reply that the contractors engaged by the defendant to construct its sewers were at all times under the immediate direction of the defendant, particularly as to the manner of doing the work; that said contractors were engaged in behalf of the defendant to take care of the plaintiff's gas pipes, and preserve them from the injuries complained of, and that the acts complained of were done by the defendant, and under its direction and procurement, and were in law its acts. To this reply there was a rejoinder, in which it was admitted that the contractors employed by the defendant were under its direction, so far as to insure the performance by said contractors of the work on said sewers according to the requirements of the contracts, and no further. The case was tried to the jury, and resulted in a verdict for the defendant.

The plaintiff, in its appeal, assigns 24 reasons, which may, however, be considered under 3 heads: First, the alleged errors in overruling the demurrers to the second or special defenses to the first and second counts of the complaint; second, in excluding the evidence which was offered by the plaintiff in support of the third count of the complaint; third, in the charge of the court to the jury.

In reference to the first head, we are inclined to think that the court erred. The defenses, on their face, purport to be, and to have been filed as, full defenses to the first and second counts, respectively. In our judgment, they are not such. It will be seen, by reference to the first count of the complaint, that the gravamen or grievance complained of is, as the plaintiff insists, the negligence of the defendant in the work of construction. The allegations of the answer of public convenience and necessity, of authority from the state, of want of knowledge of location of the plaintiff's pipes, of the discharge of a duty, the advice and superintendence of a skillful and competent engineer, and the like, however important some of these things may be, as matters of evidence, tending to show that no such negligence in fact existed, clearly constitute, severally or collectively, no excuse or justification for it, if it did exist. The allegations that all acts done by the defendant "were necessary to be done, and were done with reasonable care and without negligence on the defendant's part," cannot serve to make a special defense, otherwise bad, of validity, since they constitute, in effect, a mere denial of allegations of the plaintiff's complaint, and a mere repetition of the defense of denial already pleaded. And, finally, as to the allegations above referred to, that "all the work done in the construction of said sewers was done by contractors who were acting under contracts which the defendant, by its proper officers, had before that time entered into under the advice of competent counsel, and the acts complained of by the plaintiff, if done, were done by said contractors, and not by or under the direction or procurement of the defendant." This averment, if, as contended by the defendant, sufficient in itself to constitute a valid statement of a defense that the work in question was done by independent contractors, for whose acts the defendant was not liable, is certainly, if so understood, not only distinct from, but inconsistent with, the other paragraphs of the answer in which it is placed. It ought, rather, as we think, if possible, to be construed in connection with the rest of the answer, and as harmonizing with it; and, so understood, the allegations are of acts done by the defendant, making contracts under the advice of competent counsel, showing the exercise of reasonable care, and not of facts, the implied legal effect of which is to exempt the defendant from liability for the want of such care. Although this construction may not seem the most obvious, yet, since there is no direct averment that the contractors were independent either of the actual control, or of the right of control, of ...