Watrous v. Sinoway.

• Decision Date: 22 March 1949
• Citation: 135 Conn. 424,65 A.2d 473
• Court: Connecticut Supreme Court
• Parties: WATROUS v. SINOWAY.

135 Conn. 424

65 A.2d 473

WATROUS

v.SINOWAY.

Supreme Court of Errors of Connecticut.

March 22, 1949.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Action by Marshall Watrous against Max Sinoway for damage to apples delivered to defendant for storage, brought to the Superior Court and tried to court. Judgment for the defendant and plaintiff appeals.

No error.

Isadore Chaplowe and Vincent P. Dooley, both of New Haven, for appellant.

Bernard P. Kopkind, James O. Shea, Daniel Pouzzner and Clarence A. Hadden, all of New Haven, for appellee.

Before MALTBIE, C. J., and JENNINGS, ELLS and BROWN, JJ., O'SULLIVAN, Superior Court Judge.

O'SULLIVAN, Judge.

The plaintiff is seeking damages for the contamination by free ammonia of 2200 boxes of apples he had placed in a cold storage plant operated by the defendant. The complaint is in three counts, of which the second sounds in contract and the first and third in tort. Other than an admission that the defendant is engaged in the cold storage business, the answer to each count is in the nature of a general denial. From a judgment for the defendant the plaintiff has appealed.

The court found the following facts: The defendant has operated a cold storage plant in North Haven since 1943. The equipment, though secondhand when acquired, had been rebuilt and reconditioned and had been installed by a competent refrigerating engineer. Sometime between 10 p. m., January 10, 1946, and 7 a. m. on the following day, a metal flange attached to one of the pipes of the cooling system suddenly split, causing free ammonia to escape and damage a quantity of sound apples which the plaintiff, for a consideration, had previously stored in the plant. There was no practical method of anticipating that the flange was in danger of breaking. Proper inspection of a plant of this character consists of looking at the pipes and employing the sense of smell to detect the presence of ammonia in the air. The defendant customarily performed this routine four to twelve times daily. His last inspection before the break occurred was at 10 p. m. on January 10.

The first assignment of error is that judgment should not have entered for the defendant on the count sounding in contract. The gist of this assignment is that, since there was no affirmative defense of exoneration, the plaintiff should recover upon proof of the existence of the contract of bailment and of the failure of the defendant to return the apples in undamaged condition. The plaintiff was privileged to rest his action in either contract or tort. Dougless v. Hart, 103 Conn. 685, 690, 131 A. 401, 44 A.L.R. 820; Hickey v. Slattery, 103 Conn. 716, 719, 131 A. 558. The count under consideration alleged that the defendant was engaged in the cold storage business; that the plaintiff delivered the apples to the defendant to be kept, for a consideration, until he called for them; and that the defendant ‘failed to maintain, keep and return said apples in the same condition as they were in when stored, as proper storage and refrigeration would have enabled him to do.’

The duty of the defendant with respect to the plaintiff's apples flowed from the undertaking, implied at common law and now codified by statute, General Statutes, Rev.1930, § 4531, Rev.1949, § 6506, that he would use such care in regard to them as a reasonably prudent owner of similar goods would exercise, and from the further undertaking, likewise implied by law, that he would redeliver them upon request. Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137, 170 A.L.R. 975; Douglass v. Hart, supra, 103 Conn. at page 689, 131 A. 401, 44 A.L.R. 820. The breach of which the plaintiff complains is not addressed to the latter undertaking, as was the situation in George v. Bekins Van & Storage Co., Cal.App., 196 P.2d 637, to which our attention has been called. See Alderman Bros. Co. v. New York, N. H. & H. R. Co., 102 Conn. 461, 466, 129 A. 47. On the contrary, the plaintiff alleges a breach of the first-mentioned undertaking. The denial by answer definitely raised the issue of proper care. An affirmative defense was not required.

The question which ultimately confronted the trial court in disposing...