Trainor v. Frank Mercede & Sons, Inc.

• Decision Date: 15 December 1964
• Citation: 207 A.2d 54,152 Conn. 364
• Court: Connecticut Supreme Court
• Parties: Frank TRAINOR et al. v. FRANK MERCEDE AND SONS, INC., et al. Supreme Court of Errors of Connecticut

Page 54

207 A.2d 54

152 Conn. 364

Frank TRAINOR et al. v. FRANK MERCEDE AND SONS, INC., et al.

Supreme Court of Errors of Connecticut.

Dec. 15, 1964.

Morgan P. Ames, Stamford, with whom was Duncan C. Smith, Greenwich, for appellants-appellees (plaintiffs).

Philip R. Shiff, New Haven, with whom, on the brief, was Alan H. W. Shiff, New Haven, for appellee (named defendant).

Francis A. Smith, Jr., Bridgeport, with whom was William B. Rush, Bridgeport, for appellants (defendants Gibor et al.).

Before KING, C. J., and MURPHY, ALCORN, and SHANNON, JJ.

ALCORN, Associate Justice.

The defendants Mayer Gibor and Arthur Smith engaged the defendant Frank Mercede and Sons, Inc., a general contractor, hereinafter called Mercede, to construct a building on land owned by Gibor and Smith. The plans were drawn by an architect employed by Gibor and Smith to meet the requirements of First National Stores, which was to occupy the building as lessee. The plans called for, and Mercede constructed, an opening in the main floor, near the front door, to accommodate a conveyor to carry stock between the main floor and the basement. Before the conveyor was installed, and before the building was formally accepted by Gibor and Smith, employees of First National Stores were at work in the building in preparation for its occupancy. On July 27, 1959, Frank Trainor was hired by a foreman of First National Stores to work in the building. Trainor reported for work and was assigned the task of moving cartons and containers on the main floor. One of the cartons was lying over the opening, which was otherwise uncovered and the presence of which was unknown to him. In attempting to lift this carton, he stepped forward into the hole, fell to the basement and was injured.

Trainor brought this action against the defendants, Gibor, Smith and Mercede, to recover damages for his injuries, and, in a trial to the jury, the court directed a verdict in favor of Gibor and Smith and the jury rendered a verdict for Trainor against Mercede. Mercede moved to set aside the verdict recovered by Trainor, and Trainor moved to set aside the verdict directed in favor of Gibor and Smith. The court granted both motions on the ground that it had committed harmful error in its charge, and it ordered a new trial. Trainor has appealed from the action of the court in setting aside the verdict in his favor against Mercede, and Gibor and Smith have appealed from the setting aside of the directed verdict in their favor. Practice Book § 600.

The inherent power of a trial court to set aside a verdict because of palpable and harmful error in its charge to the jury is well settled. Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737; Libero v. Lumbermens Mutual Casualty Co., 143 Conn. 269, 273, 121 A.2d 622; Maltbie, Conn.App.Proc. § 198. The court concluded that it had committed harmful error in charging that, since Mercede was an independent contractor and had not fully completed the construction of the building for the owners, Gibor and Smith, it must therefore, as a matter of law, be held to be in control of the premises and liable for any negligence which was the cause of Trainor's fall and resulting injuries. This conclusion prompted both the directed verdict in favor of Gibor and Smith and the instructions furnished to guide the jury in the verdict rendered against Mercede.

The trial court also expressed the opinion that the charge was erroneous in defining Trainor's status on the premises in relation to the independent contractor, Mercede, and the owners, Gibor and Smith, and in defining proximate cause as it applied to the liability of Mercede. The charge on the element of control, however, is conclusive of both appeals, and we therefore devote our attention to that issue.

It is apparent from a reading of the pertinent portions of the charge that the court treated an admitted paragraph of the complaint as controlling. Trainor had alleged, in substance, that, at the time of his fall, Mercede was a general contractor engaged in constructing the building for Gibor and Smith, and this allegation was admitted by all defendants. The court read this paragraph to the jury and told them that Mercede's admission of it was conclusive. Then, after telling the jury that they must first determine who had control and possession of the premises at the time of Trainor's fall, the court said: 'I therefore instruct you, ladies and gentlemen, that where the owner of premises employs an independent contractor to perform work upon them, and in our case Mercede and Sons was an independent contractor, the contractor and not the owner is liable for any losses resulting from negligence in the performance of the work until such time as it has been completed, turned over and accepted by the owner, either formally or by conduct. While there is evidence before you that from time to time Smith and Gibor and their architect Winston inspected the progress of the building, there is nothing before you to indicate that by their conduct the building was accepted earlier than sometime after the date of the plaintiff's fall. Therefore, as this case has gone in and from the evidence and pleadings before you, I instruct you that on July 27, 1959, the premises in question were in possession of and under the control of Mercede & Sons.' Having told the jury that Gibor and Smith 'are now out of this case', the court then discussed the legal duty owed by Mercede to Trainor, directed a verdict for Gibor and Smith, and left for the jury's determination only the issues between Mercede and Trainor.

While the principle invoked by the court in charging the jury is well settled, nevertheless its basic premise is that, under the circumstances stated in it, the assumption and exercise of control over the offending area or instrumentality is deemed to be in the independent contractor. Mann v. Leake & Nelson Co., 132 Conn. 251, 255, 43 A.2d 461; Calkins v. Liggett Drug Co., 124 Conn. 14, 18, 197 A. 693. The rule is intended to go no further than to impose liability on the independent contractor under circumstances which would normally and reasonably indicate that he is the...