State v. Bloomfield Const. Co., Inc.
| Decision Date | 07 February 1940 |
| Citation | 11 A.2d 382,126 Conn. 349 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. BLOOMFIELD CONST. CO., Inc., et al. |
Appeal from Superior Court, Hartford County; Alfred C. Baldwin Judge.
Action by the State of Connecticut against the Bloomfield Construction Company, Incorporated, and others, to recover damages for breach of a construction contract and of a contractor's bond, brought to the superior court and tried to the court. From a judgment for the plaintiff defendants appeal.
Error in amount of judgment only.
Frank Covello, of Hartford, for appellant (named defendant).
Edward D. McGee and William H. Tribou, both of Hartford (Edward I. Taylor, of Hartford, on the brief), for appellant (defendant Century Indemnity Co.).
Cyril Coleman, of Hartford, for appellee (plaintiff).
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
The real party plaintiff in interest in this case was the Aetna Life Insurance Company which had paid a judgment rendered against the nominal plaintiff in favor of Duane H. Clement on account of an injury due to a defective highway under the control of the highway commissioner. The insurance company claimed to be subrogated to the rights of the state. The suit was predicated on the terms of a contract entered into by the named defendant, the Century Indemnity Company, the other defendant being surety on the construction bond. The defendants attack the finding and the conclusions based thereon.
The evidence was printed but the finding cannot be corrected in any way material to this appeal. On November 21, 1933, the Bloomfield Construction Company entered into a contract with the state highway commissioner to repair a road in Simsbury. The Standard Specifications for Road and Bridge Construction were incorporated therein by reference. On that day the Bloomfield Construction Company as principal and the Century Indemnity Company as surety executed a bond in favor of the State of Connecticut which included in its terms the contract and the Standard Specifications. Work under the contract was commenced shortly after its date and proceeded until January 14, 1936, when, because of inclement weather, it was temporarily suspended. It was resumed in the spring and completed and accepted on behalf of the state on May 12, 1936. At that time written certificates that the work had been completed satisfactorily were delivered to the defendants.
On February 11, 1936, Clement, a traveler on the highway, was injured by reason of a defect existing within the stretch of highway involved in this construction work. He subsequently brought suit against the highway commissioner and the Bloomfield Construction Company which resulted in a judgment for $4000 against the state only, for which it was reimbursed by its liability insurer, the Aetna Life Insurance Company. The Bloomfield Construction Company, in whose favor judgment was rendered, was represented in that action by counsel who were employed by the Century Indemnity Company in pursuance of a liability policy issued by it to the construction company.
When the work was commenced the state erected large eight by eight foot signs at both ends of the project legally closing the road under § 1513 of the General Statutes. This provides that any person who uses a highway under construction, where notices are posted in accordance with its terms, does so at his own risk. The construction company was required, under the provisions of the Standard Specifications, to maintain and light these signs and it did light them with lanterns. About a week before the accident the sign at the end of the construction in the direction from which Clement approached had been blown over and covered with snow. Because of this condition-the failure by the construction company to maintain this sign according to its contract-the state was deprived of its defense under the statute, § 1513, in the action brought by Clement.
On these facts the trial court concluded that the defendants were jointly liable under the construction bond, that the judgment in the case of Clement v. MacDonald was not res adjudicata, that the plaintiff did not release or waive its present claim nor was it estopped to prosecute its present action, and that the fact that the state was insured against liability, and that it did not tender to the defendants the defense of the original action were immaterial.
The finding that the state was deprived of its defense to this action because the sign closing the road was down was disputed by the defendants but must stand. Belhumuer v. Bristol, 121 Conn. 475, 479, 185 A. 421. There was substantial evidence to support the finding in this case that, not only was it the duty of the construction company to maintain the signs under the terms of its contract but that it did exercise what supervision there was over their maintenance while the work was suspended. Its vice president ordered one of its employees to keep two lights on each sign lit during the night while the work was suspended and the construction company did hang two red lanterns on each sign. Each lantern contained sufficient fuel to burn eight days. The vice president, who was also the superintendent in charge of the job, occasionally checked up on the signs and lights during this period.
Seven special defenses were filed. The first and second raise the issue of res adjudicata and the sixth the closely related defense of estoppel by judgment. The issue in this case is whether the construction company violated its contract by failing to maintain warning signs, thereby depriving the plaintiff of a complete defense to the original action. The trial court found as a fact that the issue of control of the warning signs was not before the court in the original case and concluded that the judgment in that case was not res adjudicata as to the issues here raised. The complete file in the original case is a part of the finding in this case. All the evidence in this case is printed. The only evidence available in this appeal as to the issues in the original case is contained in the file of that case. That file discloses that the suit was originally brought against MacDonald as highway commissioner alone and the writ was served May 20, 1936. A motion to cite in the construction company was granted January 22, 1937. A substituted complaint was filed January 20, 1938, against both defendants. This alleged that the highway commissioner was under a duty to maintain the strip of road in question, that he failed in this duty in that there was a ditch or depression in the road by reason of which the plaintiff was injured. It was further alleged that the road was being repaired by the construction company under a contract with the highway commissioner and that the defect was caused by the fault of the construction company. Both defendants filed what were in effect general denials and the construction company added a special defense alleging that the highway was legally closed to traffic. The judgment found the issues thus framed against the commissioner and for the construction company.
The special defenses in this suit alleged and the replies admitted that the court found in the original suit that, at the time of the injury to Clement the commissioner had accepted the contractor's work and had resumed full charge and control of the road and that the injuries to Clement were caused solely by the neglect of the commissioner. To repeat, the original complaint alleged (1) that the defect was due to failure to repair by the commissioner, and (2) was caused by the construction company. The latter was exonerated and the memorandum of decision in the original suit, which we may refer to for this purpose ( Storrs v. Robinson, 77 Conn. 207, 209, 58 A. 746), states that the contractor was through, temporarily at least, with the job and that thereafter the fill settled and the sign fell down.
The real question is whether the finding in the original case that the commissioner had resumed full control of the road includes the issue here that under the contract the signs were to be and in fact were being maintained by the construction company. The foregoing analysis shows that the issue as to the control of the signs was not one which was litigated in the original suit, nor could it have been. If the commissioner had resumed full charge and control of the road and the sign was down, he would be liable no matter whether the duty to maintain that sign rested upon him or upon the construction company and the construction company would not be liable for injuries due to a defect in the roadway even though it were responsible for the sign not being in place. The control of the highway at the time of the accident to Clement was the determining factor in the decision of that case fixing the liability upon the state and it would have made no difference whether or...
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