Royal Homes, Inc. v. Dalene Hardwood Flooring Co.

• Decision Date: 12 March 1964
• Citation: 151 Conn. 463,199 A.2d 698
• Court: Connecticut Supreme Court
• Parties: ROYAL HOMES, INC. v. DALENE HARDWOOD FLOORING COMPANY, Inc. Supreme Court of Errors of Connecticut

Page 698

199 A.2d 698

151 Conn. 463

ROYAL HOMES, INC. v. DALENE HARDWOOD FLOORING COMPANY, Inc.

Supreme Court of Errors of Connecticut.

March 12, 1964.

Jacob H. Channin, Hartford, for appellant (plaintiff).

Edmund T. Curran, Hartford, with whom were William R. Moller, Hartford, and, on the brief, J. Ronald Regnier and Robert F. Taylor, Hartford, for appellee (defendant).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

COMLEY, Associate Justice.

In this action, the plaintiff seeks damages for injury to property caused by a fire in a dwelling house which it was building in East Windsor. The complaint alleged that the fire occurred because of the defendant's negligence. The jury returned a verdict for the defendant and from the judgment rendered thereon the plaintiff has appealed to this court, relying on certain claims of error in the charge to the jury. In considering such claims, we must test the charge by the claims of proof advanced by the parties as those claims appear in the finding. Practice Book, 1963, § 609; Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215.

It appears from the finding that the plaintiff made the following claims of proof. The plaintiff was a builder engaged in the construction of private residences, and, on April 23, 1958, it was building a dwelling house on a lot owned by it in East Windsor. In the previous November, it had entered into a contract with the defendant for the furnishing, installation, sanding and finishing of the floors. Prior to April 22, 1958, all of this work had been completed, but, on that day, the floors were again sanded and finished as a result of a complaint made by the plaintiff to the defendant that this part of the work had not been properly done in the first instance. In the early hours of the morning of April 23, 1958, a fire started in the kitchen of the house, causing extensive damage. The plaintiff claimed to have proved that the fire was the result of spontaneous combustion in a box of sanding dust, a highly dangerous and inflammable substance, which was left in the kitchen by the defendant's employees.

The defendant offered evidence that sanding dust, which consists of the fine sawdust and the finish or sealer removed from floors, is not dangerous and cannot ignite by spontaneous combustion and that in any event the workmen who sanded and finished the floors were not its employees but were the employees of Ommund Pedersen, to whom the defendant had subcontracted this part of the work as an independent contractor. With reference to the effect of Pedersen's status, the plaintiff requested the court to charge the jury that the defendant could not escape responsibility by employing an independent contractor and that it would be liable whether the fire was caused by the negligence of its employees or by the negligence of Pedersen's employees. The court refused this request and charged, in substance, that if Pedersen were found to be an independent contractor, the defendant would not be liable for his negligence or the negligence of his employees unless the work, even though properly performed, was of such a nature as would obviously and naturally expose the plaintiff to probable injury. It is unnecessary for us to decide in this case whether the plaintiff's request to charge was, as claimed by the defendant, too broad in extending liability for the acts on an independent contractor or whether the charge as given was, as claimed by the plaintiff, too narrow in limiting such liability. The verdict was a general verdict, and all issues were thus found in favor of the defendant. Under the answer, which consisted of simple denials, there were two defenses advanced by the defendant at the trial, the first being that the fire was not caused by negligence and the second being that, if it was so caused, the negligence was that of an independent contractor. These are distinct defenses. Under our modern rule of pleading, the defense of independent contractor should have been specially pleaded. Practice Book, 1963, § 120; Franks v. Lockwood, 146 Conn. 273, 279, 150 A.2d 215. Since evidence as to this issue came in without objection, the defect in pleading is deemed to have been waived. Hanley Co. v. American Cement Co., 108 Conn. 469, 471, 143 A. 566. The fact that there were these two distinct defenses brought into operation the rule expressed in Meglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187, 188: 'The Connecticut rule may be stated as follows: If there is no...