Schurgast v. Schumann

Decision Date21 May 1968
Citation156 Conn. 471,242 A.2d 695
PartiesAnselm SCHURGAST v. Roger M. SCHUMANN et al.
CourtConnecticut Supreme Court

George E. McGoldrick, New Haven, with whom was William G. Comiskey, Meriden, for the appellants (original defendants) and for appellee (third-party plaintiff).

Valentine J. Sacco, Hartford, for appellant (third-party defendant).

George Levine, Hartford, with whom, on the brief, was Melvin S. Katz, Hartford, for appellee (original plaintiff).


RYAN, Associate Justice.

In the original action, the plaintiff Anselm Schurgast, seeks to recover damages for the destruction by fire of a house which the defendant Roger M. Schumann had agreed to construct for him. The first count sounds in negligence and sets forth specific acts of negligence by Schumann and his employees, the defendants Louis Corte and Rodney Weed. In the second count, Schurgast alleges facts for the obvious purpose of relating the essential elements of the doctrine of res ipsa loquitur. Although no demurrer was addressed to this count, it should be noted that, since there is no allegation of negligence on the part of the defendants, it fails to set forth a cause of action. The third count sounds in contract. During the course of the trial, the third count was withdrawn and is not involved in the present appeal. Schumann instituted a third-party action against the Aetna Insurance Company, hereinafter sometimes referred to as the third-party defendant and sometimes as Aetna, wherein he sought a judgment declaring that a manufacturers' and contractors' liability policy issued to him by the third-party defendant covered the events described in Schurgast's complaint, that the third-party defendant must defend the action brought against Schumann by Schurgast, and that the third-party defendant must pay any judgment which may be obtained by Schurgast against Schumann up to the limits of the policy.

The trial court found the issues on the original action for Schurgast against Schumann and against Weed and Corte, his two employees. It also found the issues on the third-party action in favor of Schumann, the third-party plaintiff and one of the defendants in the original action, against Aetna, the third-party defendant. Appeals have been taken by the defendants on the original action and by the third-party defendant. We shall consider first the appeal of the original defendants from the judgment of the trial court against them.


In their first assignment of error, the original defendants seek to have added to the finding certain facts which they claim are either admitted or undisputed. 'This court has the power to correct the finding where it fails to include admitted or undisputed facts. Practice Book § 627; Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. A fact, however, is not admitted or undisputed simply because it is uncontradicted. * * * In the instant case, there was no failure on the part of the trial court to include any paragraphs of the draft finding which were admitted or undisputed, as set forth under our rule in cases such as Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634.' Solari v. Seperak, 154 Conn. 179, 182, 224 A.2d 529, 530-531.

The second assignment of error attacks certain paragraphs of the finding as having been found without evidence. This claim is without merit since the challenged paragraphs of the finding either are directly supported by the evidence or are based on inferences reasonably drawn from the evidence. Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79.

The finding is not subject to any material change and discloses the following facts: On August 26, 1959, Schurgast entered into a written agreement with Schumann, a building contractor, in which Schumann agreed to construct a one-family dwelling for Schurgast on land owned by Schurgast in Meriden. Prior to January 11, 1960, Schumann and his employees had begun construction of the Schurgast house. The foundation of the house was completed, the house was framed in, the roof was on, the sides were shingled, the windows and the doors were in place, locks were in the doors, the insulation was in, and the rough plumbing, the rough electrical work and the water service were installed. On the morning of January 11, 1960, the house was completely destroyed by fire. At the time of the fire, Corte and Weed were employees of Schumann and were doing carpentry work on the Schurgast house. Schumann safeguarded the Schurgast house while it was under construction. At Schumann's instruction the house was locked at night. There were only two keys to the house; Schumann had one, and Corte and Weed shared the other. Schurgast did not have a key to the house. Schumann engaged all subcontractors on the house and directed them as to when to perform their work. Schurgast made no arrangements with subcontractors. Schumann was the only person who gave instructions to his employees; Schurgast gave them no instructions. No one could enter the Schurgast house without the permission of Schumann. On the morning of the fire, Schumann and his employees had control of the house. Approximately two years prior to the fire, Schumann had purchased a new salamander stove. A salamander is a tool of the trade of a building contractor which is used to heat a building under construction and to dry plaster. Schumann's salamander was made of heavy-guage steel, was about five feet high, weighed about twenty-five pounds and burned kerosene. This stove had been used by the defendants on other jobs prior to this one. It was placed in the kitchen on the first floor of the Schurgast house about three weeks before the fire and was used for a period of time prior to the fire. On the morning of the fire, inspection and use of the salamander were within the control of the defendants. The stove rested on three bricks on the kitchen floor. It had no flue or exhaust pipe to the outdoors. It held between three and five gallons of kerosene. The amount of air entering the salamander was regulated by one of two levers. The amount of heat provided was regulated by controlling the amount of air entering the stove. It was necessary to check and clean the salamander regularly to ensure that no dirt or foreign matter would interfere with its proper operation. On the morning of the fire, the salamander was in good condition. Ordinarily, a salamander which is in good condition will not start a fire except as the result of a careless inspection or user. On the morning of the fire, Corte and Weed arrived at the Schurgast house at about 8 a.m. They filled the stove by having one man pour kerosene from a can, while the other man held open a hole in the stove. They then lit the stove by igniting a piece of paper and inserting it through the hole into which the kerosene had been poured. Shortly thereafter, Corte and Weed began to work in a second-floor bedroom. Sometime between 9 a.m. and 9:30 a.m., Corte left the house to get coffee for himself and Weed. He returned to the house with coffee after fifteen or twenty minutes. Corte passed through the kitchen when he went out and on his return. On going out he locked the rear door. Upon his return, he went back to the second-floor bedroom where he and Weed were working. Corte and Weed were the only people in the Schurgast house on the morning of the fire. Shortly before 11 a.m., Corte and Weed smelled smoke, and, when they went down to the kitchen, they found the floor surrounding the salamander in flames. Prior to the igniting of the floor around the stove, the only fire in the Schurgast house was the fire in the salamander. The fire in the salamander escaped and ignited the kitchen floor. When first discovered, the fire was confined to the area immediately surrounding the salamander. The kitchen floor consisted of seasoned, laminated plywood, one and one-eighth inches thick. When Corte and Weed got to the kitchen, the salamander was standing upright. They spent from one and one-half to five minutes trying to put out the fire. When they were unable to extinguish it, Corte went to a neighborhood house and telephoned the fire department. The fire department arrived within seven or eight minutes after receiving Corte's call. At this time, the house was engulfed in flames, and the fire was buring rapidly. The house burned to the foundation and collapsed into the basement. The salamander was demolished in the fire. Schurgast had nothing to do with the fire which destroyed his house. His damages are $11,818.40, plus interest of $4712.73.

From these facts the trial court concluded: (1) The defendants Corte and Weed, acting as employees of the defendant Schumann within the scope of their employment, were negligent in the inspection and use of Schumann's salamander. (2) The negligence of the defendants Corte and Weed was the proximate cause of the fire which destroyed the Schurgast house; (3) Schurgast is entitled to recover of the defendants damages in the amount of $11,818.40, plus interest of $4712.73.

The court's conclusions are to be tested by the finding and not by the evidence. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855. 'The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law. Johnston Jewels Ltd. v. Leonard, 156 Conn. --, 239 A.2d 500, 503.' Pigeon v. Hatheway, 156 Conn. --, 239 A.2d 523. The defendants assign error in the conclusions reached by the court and contend that the conclusion of negligence is not based on any positive finding of subordinate fact and that it cannot be sustained by resort to any of the evidentiary doctrines of circumstantial evidence, reasonable inference, or res ipsa loquitur.

The trial court did not indicate upon which count of the...

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