Reciprocal Exchange v. Altherm, Inc.

• Decision Date: 05 July 1955
• Court: Connecticut Supreme Court
• Parties: RECIPROCAL EXCHANGE, et al. v. ALTHERM, Inc., et al. Supreme Court of Errors of Connecticut

Page 460

115 A.2d 460

142 Conn. 545

RECIPROCAL EXCHANGE, et al. v. ALTHERM, Inc., et al.

Supreme Court of Errors of Connecticut.

July 5, 1955.

DeLancey S. Pelgrift, Hartford, with whom was Robert E. Cohn, Hartford, for appellants (defendants Jackson).

Samuel Freed, Hartford, with whom, on the brief, was Jacob Bresnerkoff, Hartford, for appellees (plaintiffs).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and PHILLIPS, Superior Court Judge.

DALY, Associate Justice.

The plaintiffs, insurance companies, as subrogees under insurance policies issued by them to Saul Silver, Jacob Silver, William C. Silver and Louis Silver, doing business as the Elco Beverage Company and the Bristol Bottling Works, and hereinafter referred to as the owners, brought this action, in three counts, against the defendant Altherm, Inc., and the defendants Edward F. Jackson and Merle H. Jackson, doing business as the Industrial Oil Burner Company. The action was brought on the first count, against the defendant Altherm Inc., and on the third count, against the defendants Jackson, to recover for damage to the owners' property by explosion, alleged to have been caused by the negligent installation, inspection and servicing of an oil burner. The second count alleged breach of warranty by the defendant Altherm, Inc. The court rendered judgment for the plaintiffs to recover damages from the defendants on the first and third counts and for the defendant Altherm, Inc., on the second count. From the judgment against them on the third count, the defendants Jackson have appealed. No appeal having been taken by the defendant Altherm, Inc., from the judgment against it on the first count, the Jacksons only are hereinafter referred to as the defendants.

In their assignments of error the defendants claim that the court erred in refusing to find material facts as set forth in the draft finding and in finding certain facts as set forth in the finding. All but one of these assignments either are not pursued in their brief or seek changes which would not directly affect the ultimate facts upon which the judgment depends. The claims of error not included in their brief are regarded as abandoned. Bridgeport Hydraulic Co. v. Stratford, 139 Conn. 388, 390, 94 A.2d 1. No useful purpose would be served by correcting the finding if the changes sought would not directly affect the facts upon which the judgment depends. Cole v. Associated Construction Co., 141 Conn. 49, 51, 103 A.2d 529, 40 A.L.R.2d 1105. In the remaining assignment the defendants contend that the court erred in finding facts without evidence. The court did not err as claimed, since it could draw reasonable and logical inferences from other unchallenged facts which existed prior to or subsequent to the event in question. Shaughnessy v. Morrison, 116 Conn. 661, 664, 165 A. 553.

The facts are as follows: On April 11, 1952, Altherm, Inc., entered into a written contract with the owners for the installation of a new steam boiler in their bottling plant in Bristol, to be used for supplying heat and steam for the cleaning of bottles. In addition to the boiler, the contract called for the construction of a combustion chamber under the boiler and the installation of a York oil burner. The owners chose this burner because, among other reasons, they knew that York had service representatives in the Hartford area, including Bristol. Altherm, Inc., purchased the boiler from the Steammaster Boiler Company of California and the burner from the Excel Company of New York City, which was the sales and service representative in that city for York burners. Altherm, Inc., made a subcontract for the construction of the combustion chamber with the Boiler and Equipment Company of New York City. The design for the combustion chamber was selected by Altherm, Inc., from the standard plans furnished by the Steammaster Boiler Company. These plans differed from the designs for combustion chambers used by the York Oil Company in connection with its burners.

During October, 1952, the boiler and the oil burner were installed and the construction of the combustion chamber was completed by the Boiler and Equipment Company in accordance with the design furnished by Altherm, Inc. On October 29, the oil burner was started but did not operate properly. The flame was irregular and pulsating, there was smoke inside the chamber and there was an odor of fuel oil. The defendants were the exclusive York representatives in the Hartford area. Because Altherm, Inc., was unable to give any assurance as to when representatives of the Excel Company could come to put the burner into proper operation, and because it was cold and their production line was practically at a standstill, Saul Silver, one of the owners, made several calls to the defendant Edward F. Jackson, urging him to come to the owners' plant in Bristol and do everything possible to fix the burner.

Late in the afternoon of October 29, the defendants went to Bristol and inspected the burner. They made some adjustments but were unable to get an efficient fire. They left, promising to send a service man the following day. When they left, the burner was in operation but was producing a dangerous and hazardous fire. The installation was equipped with a five-point electronic safety burner control, approved by the Factory Mutual Insurance Company and Underwriters. This device was designed to shut off the burner in the event of a failure and thus to prevent an explosion. The device is the newest and latest type of safety equipment and was operating properly. The defendants tested the safety device, which had just been wired by an electrician who was there when they arrived. This was done five or six times in the presence of Louis Silver, one of the owners. It was impossible for the defendants to inspect or examine the design of the combustion chamber because the only means of viewing it was through a small porthole.

On October 30, Clifford Riggott, an employee of the Jacksons, went to the owners' plant and spent four or five hours in adjusting the burner. Among other things, he placed bricks in the front of...