Walden v. Siebert , 102 Conn. 353 ( 1925 )

Two motions were made to rectify the finding, both directed to produce some statement by the judge to the effect that Bernier, the person employed by defendants to build the fence, was an independent contractor. Certain evidence claimed to bear upon this point is printed in the appeal record, but the same is not certified either by stenographer or judge, as required by the rules of practice, and cannot be considered by us for that reason. It further does not appear, but is distinctly negatived by the record, that the exceptions to the refusal of the judge to find as requested were annexed to the motion or filed at the same time. It may be said, however, that had this fact been found, it would not have availed the defendants. In the complaint it was alleged that they were doing an act in itself illegal, as it certainly was if the allegations were true. In such a transaction it is not available as a defense that in doing an illegal act one has employed a contractor, who by his contract has entire control of the means and methods of executing the work proposed and is answerable to his employer only for the result contemplated, thereby becoming an independent contractor. It is the doing of the illegal act which is enjoined, and it makes no difference what means are employed by a defendant in so doing. These defendants were enjoined not to continue building the fence, and it was just as feasible to interrupt the work of an independent contractor as that of one who was not. If any damage enured to them from such an interruption, the injunction had been granted upon filing of a substantial bond by plaintiffs, so that defendants were immune from loss in case they prevailed in the action.

The main claim of defendants stated in the reasons of appeal, in various ways from different viewpoints, is that the act of continuing the building of the fence was not, upon the facts found by the judge, a disobedience of the terms of the injunction, in that the fence which they were constructing was at its highest point only eight feet five inches, while they were charged with erecting, and enjoined from continuing to erect, a fence ten feet in height. Stated in another way, the height of the fence was the gist of the action, citingBaldwin v. Miles, 58 Conn. 496, 502, 20 A. 618, which lays down the rule that "`Injunctions ought to be made plain and distinct. No respondent is to be entrapped into a contempt by vague and general orders.'" Clearly there was nothing vague or general about the form of the injunctive order in the instant case. There can be no doubt but that the fence in question was clearly indicated in the temporary injunction. Paragraph five of the complaint, quoted above, describes a tight board fence that had already been erected and a contemplated continuation of the same which was in process of erection, and the defendants were enjoined to wholly desist from continuing the further erection of this fence. The only variation from absolute accuracy of description of the structure was in overstating its height. Other details regarding the fence were entirely accurate, that is, its location and character. There was but one fence being built on the property and that was on the easterly boundary of the lot as described. The purpose of the order was manifest to anyone of ordinary intelligence; it was to stop the building of a spite fence, which the fence rapidly progressing toward completion was alleged to be.

As bearing upon the point of actual violation of the order, defendants claim that in view of the conduct of Dorothea Siebert, who took charge of the matter, so far as anything was done about it, in handing the copy served on her to Mr. Bernier and asking him what was to be done about it, no wilful violation of the injunction took place. It appears that Bernier told her he would see his lawyer about it. It does not appear of record whether he did so, but however that may be, the work on the fence proceeded until 11:45, and the fence was extended for a distance of about thirty-five feet during that period of time. It is the claim of defendants that they were not bound by the injunctive order to instantly stop the construction of the fence at their peril, but were entitled to a reasonable time to ascertain their legal rights in the matter. Having regard to the rapidity with which the building of the fence was progressing, and their leisurely way of becoming acquainted with their rights, it would seem that they were in the way of getting knowledge of their rights and also getting their fence had the inquiries and the building continued much longer. The order of the injunction should have been obeyed and the work on the fence stopped, while defendants were taking steps to ascertain their rights. There is nothing in the finding to show that the interests of the defendants would have been harmed by the short delay in construction which would have ensued had a motion for dissolution of the injunction been made, and the result of a hearing thereon awaited. The other way to proceed was the one taken, to disobey the injunction and await the result. Both are effective; the one taken involves the usual hazards attendant upon contempt of court. In view of the fact that the erection of the fence had proceeded to a point opposite a bay window forming part of the plaintiffs' dwelling, and was already a nuisance, and that but a short time would elapse before the fence was completed and the mischief done, it can hardly be held that the lack of prompt obedience to the injunction was not wilful. If the work could properly be continued and finished during the time which defendants' counsel contend should have been allowed to investigate the legality of the order, the fence would have been finished and the plaintiffs would have been compelled to await for several months, probably, the trial of the action in the Superior Court. If the order of the judge was to be of any avail to plaintiffs, prompt obedience to it was necessary. Any action delaying such conformity could not be anything else than wilful.

There is no error.

In this opinion the other judges concurred.