Southern New England Tel. Co. v. Rosenberg

• Decision Date: 16 June 1970
• Citation: 159 Conn. 503,271 A.2d 87
• Court: Connecticut Supreme Court
• Parties: SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. Leon M. ROSENBERG et al.

Page 87

271 A.2d 87

159 Conn. 503

SOUTHERN NEW ENGLAND TELEPHONE COMPANY v. Leon M. ROSENBERG et al.

Supreme Court of Connecticut.

June 16, 1970.

William B. Ramsey, New Haven, for appellant (named defendant and others).

Arthur H. Latimer, New Haven, with whom were Donald F. Keefe and James B. Curtin, New Haven, for appellee (plaintiff).

Before ALCORN, C.J., and COTTER, RYAN, SHEA ^* and RUBINOW, ^** JJ.

COTTER, Associate Justice.

The court rendered judgment in favor of the plaintiff for damage to personal property on three counts of negligence against three defendants-the city of New Haven, Leon M. Rosenberg, and Richard Hill. Those defendants have appealed. The facts found by the court, which are unchallenged, disclose the following.

In the summer of 1965 the city and the plaintiff reached an agreement for the installation of certain telephone equipment. The parties agreed that the equipment would be housed in a special room to be constructed in a corridor between two annexes of the city hall. During that summer, city employees and private contractors hired by the city undertook construction of the new room. There was a large upright radiator which was to be removed and replaced by baseboard heating in the area in which the room was to be constructed. On August 16, 1965, a plumbing contractor hired by the city removed the radiator in the presence of the defendant Rosenberg who was the city's superintendent of buildings. A pipe protruding through the floor had provided the radiator with live steam, the supply of which was controlled by a valve on the pipe. When the radiator was removed, the valve was left closed but Rosenberg told the employees of the plumbing contractor not to cap the pipe. The court also found that it is customary and good plumbing practice to cap such a supply pipe, or to cap the valve remaining connected to it, upon removal of a radiator.

Prior to September 26 certain equipment belonging to the telephone company was moved into the room to be installed. On Sunday, September 26, Rosenberg was requested to activate the heating system to provide heat for an evening conference at the mayor's office. He initially protested because it was his custom, and good engineering practice, to inspect the heating system prior to activating it for the cold season, and he had not yet done so. His customary inspection would have included the pipe and value in the room containing the plaintiff's equipment. Despite his initial reluctance, he started the boilers himself at 12:30 p.m. and then left while the defendant Hill, a boilerman newly employed by the city and not conversant with the heating plant, remained at the boilers. Hill found himself unable to keep up the boiler pressure and, at about 3 p.m., telephoned Hugh J. Riley, another city boilerman, who arrived at about 3:30 and observed steam billowing out of the room housing the plaintiff's equipment. Riley then shut down the boiler and turned off the valves controlling the steam supply to the area in which the equipment was located. The plaintiff's engineers subsequently determined that the equipment had been damaged beyond the point of repair by exposure to moisture and high temperature.

In their first assignment of error. the defendants claim that the trial court should have found certain alleged facts which were set out in their draft finding. Several of the paragraphs in dispute are in fact covered in the court's finding. The finding in any paragraph need not be in language identical with the draft finding. Aczas v. Stuart Heights, Inc., 154 Conn. 54, 56, 221 A.2d 589. Other paragraphs of the draft finding are abandoned, and some are not shown to be material. Still others are drawn so as to support the claim made in the defendants' brief that 'the valve was in proper working order and would stop the flow of steam if closed. The only logical conclusion that can be drawn from these facts is that someone working for the plaintiff * * * opened the valve.' It must be noted that the defendants had never raised the issue of the plaintiff's contributory negligence in the pleadings. See General Statutes § 52-114. The assertion that the valve would stop the flow of steam if closed is not supported by the unchallenged finding that it was customary and good plumbing practice to cap the supply pipe, or the valve connected to it, upon removal of a radiator. It is a reasonable inference from this finding that such a valve may deteriorate or accidentally become open or that for other reasons it may not be reliable in blocking off the steam. The finding that Rosenberg only a new days prior to the accident expressed concern that on old valve was still on the steam pipe belies the defendants' claim. The defendants have failed to show that the truth of their assertion was admitted or undisputed. Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619.

Who paragraphs of the draft finding appear to be aimed at establishing a claim that the defendants had no duty to provide a safe heating system in the room in question. The finding, however, shows that the city undertook to construct the new room for the plaintiff's equipment, to...