Welz v. Manzillo

• Decision Date: 29 July 1931
• Citation: 113 Conn. 674,155 A. 841
• Court: Connecticut Supreme Court
• Parties: WELZ v. MANZILLO.

155 A. 841

113 Conn. 674

WELZ v. MANZILLO.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Court of Common Pleas, New Haven County; Harry J Beardsley, Judge.

Action by Michael Welz against Matthew Manzillo for damages for personal and other injuries alleged to have been caused by defendant's negligence. Verdict and judgment for plaintiff, and defendant appeals.

Error and new trial ordered.

James M. Lynch, James E. McKnight, and J. Gregory Lynch, all of Waterbury, for appellant.

Irving W. Pasternak and Michael V. Blansfield, both of Waterbury for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, J.

The plaintiff and the defendant owned adjoining tracts of land in Waterbury. The complaint alleges, in substance that on May 31, 1927, about 7:30 in the afternoon, the defendant for the purpose of breaking up some stone and boulders on his land, and while the plaintiff was on his own lot about seventy feet distant, set off a heavy charges of dynamite which had been inserted into a boulder or rock on the defendant's land; that the force of the explosion was such that various pieces of rock, dirt, and débris were hurled some distance, one piece of rock striking the plaintiff on the back, causing serious physical injury, and resulting in much suffering and expense and loss of earnings. It is alleged that this blasting operation was done by the defendant in a negligent, careless, and reckless manner, and so rendered the defendant liable to the plaintiff for the injuries the latter suffered.

Following a general admission and denial, the defendant's answer contains a special defense that the blasting operations were entirely under the control of Walter Martin, as an independent contractor, who was a competent blaster working under a permit as required by law, and that the defendant had no control or direction whatever over the operation; and further, that the blasting of these rocks, under the circumstances then and there existing, was not an inherently dangerous operation. In reply to all this, the plaintiff entered a general denial. The case was tried to a jury, and verdict was rendered and judgment entered for the plaintiff, from which the defendant now appeals.

The situation of the parties, the setting off of the blast, and the resulting injury to the plaintiff are not disputed. An important issue framed by the pleadings was whether the blasting was done by the defendant with Martin assisting as servant and agent, or whether Martin assumed all the responsibility for the operation, acting as an independent contractor. The jury reached the conclusion that Martin was not an independent contractor. Another issue was whether the operation under the circumstances was inherently dangerous to the life and property of others, the plaintiff affirming and the defendant denying this. The jury decided that it was, and that the operation was not properly done so as to avoid that danger. These conclusions were obtained from the jury by interrogatories.

The defendant filed a " Proposed Draft Finding," five paragraphs of which are printed in the record. The defendant's brief asserts that the plaintiff filed a counter draft finding, but nothing of the kind appears in the record before us. The record shows an unfortunate, but still not uncommon, misconception on the part of counsel of the nature and purpose of a finding in a jury case. The defendant filed a long motion to correct the finding by striking out certain paragraphs and amending others, and annexed exceptions with exhibits of portions of the testimony, and the failure of the trial court to comply in some respects with these requests is the subject of numerous assignments of error. In each paragraph of the motion to correct, reference is made to the plaintiff's or defendant's " claim of facts." A finding in a jury case is not a recital of determined facts, but simply a statement in narrative form that evidence was offered to prove certain facts, and that the party claims they were so proved. Its purpose is simply to enable the appellant to fairly present to this court errors in the charge or rulings of the court, which are ordinarily the errors claimed in a jury case, and this case is no exception. We are not concerned, as counsel apparently are, in obtaining absolute exactness in the detailed claims of proof. If the finding fairly presents to us the claimed errors of law, it will not be corrected. As we have indicated, the questions the appellant seeks to present on this appeal are essentially four: (1) Whether Martin was an independent contractor, or the servant and agent of the defendant; (2) whether the blasting operation was inherently dangerous to the life and property of other persons; (3) whether certain evidence was properly admitted; and (4) as to the measure of damages. All these are fairly presented by the finding as it stands, and the assignments of error relating to the finding will not be further considered here. State v. Gargano, 99 Conn. 103, 106, 121 A. 657; Brown v. Goodwin, 110 Conn. 217, 218, 147 A. 673.

The jury were charged that the measure of damages in personal injury cases included compensation for pain and suffering, physical and mental, expense of medical and surgical treatment, medicine and nursing, time lost, and, if the injury had lasting effects, permanent diminution of earning capacity; that mental suffering, if a natural and proximate result of the physical injury, was a proper element, as well as the danger, if any, from putting his life in jeopardy, since that would cause mental suffering. A fault in this assignment, common to all the others relating to the charge, is the failure of counsel to point out wherein the charge complained of is erroneous. While the criticism of this by opposing counsel is thus well taken, and the rule should be observed, we do not feel that we should refuse, as we might do, to consider these portions of the charge under the circumstances. It does appear in the appellant's brief that the objection made to this part of the charge is the reference to jeopardy as the cause of mental suffering, and it is argued that, if the plaintiff was subjected to mental suffering, it was not from jeopardy, since he could not have known that his life was in jeopardy until he was hit, and any mental suffering must have been due to the physical injury rather than to jeopardy. This is a wrong construction of the words of the court. The language used refers rather to the jeopardy caused by the physical injury, than to the previous apprehension of harm. The rule of damages given was essentially correct.

In dealing with the subject of independent contractor, the court first told the jury " the general rule is that the contractee is not liable for injuries caused by an independent contractor." In explaining the meaning of this term, the court further said that " an independent contractor is one who exercises an independent employment, contracts to do a piece of work according to his own methods and without being subjected to the control of his employer except as to the result of his work." This is an accepted general definition, which has been repeatedly recognized as correct in the decisions of this court. Lassen v. Stamford Transit Co., 102 Conn. 76, 79 80, 128 A. 117; Alexander v. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514; Kinsman v. Hartford Courant Co., 94 Conn. 156, 159, 108 A. 562. The court then added that " if the defendant (employer) has control of the method of doing the work by instructing the person doing the same, where to work, how to perform the work, or...