172 Conn. 88 | Conn. | 1976
The plaintiffs brought this action in two counts, breach of contract and negligence, seeking $12,500 damages arising out of their purchase of a new home which they alleged was serviced by a defective septic system. The defendant interposed a counterclaim for the reasonable value of a curtain drain thereafter installed on the premises. The jury returned a general verdict of $6000 in favor of the plaintiffs and the defendant appealed from the judgment rendered thereon.
In this court the defendant raises for the first time the question of the jurisdiction of the Court
The defendant further claims error in admitting into evidence, as an exhibit, a pamphlet purportedly containing certain sections of the Connecticut state department of health public health code regulations (hereinafter the code) to which the defendant objected and took exception on the grounds, inter alia, that the pamphlet was not a certified copy and that the pamphlet was immaterial. Since the circumstances attending the court’s ruling admitting this pamphlet are important we set them out initially.
The plaintiffs introduced this pamphlet into evidence as a foundation for the testimony of George Frigon, sanitarian for the town of Ridgefield at the time of trial in 1974, who was prepared to testify that his examination of the plaintiffs’ septic
The court overruled the defendant’s objection that the pamphlet was not certified
The notation “In effect 1969” appearing on the exhibit was apparently typed to comply with General Statutes § 19-13, which provides in pertinent part: “The public health council shall establish a public health code and, from time to time, amend the same. . . . Each regulation adopted by said council shall state the date on which it shall take effect, and a copy thereof, signed by the commissioner of health, shall be filed in the office of the secretary of the state and a copy sent by said commissioner to each director of health, and such regulation shall be published in such manner as said council may determine.” Since the relevance of the pamphlet rested on its containing the 1968 code provisions, with which the plaintiffs claimed the defendant was required to comply in constructing the plaintiffs’ septic system, its admission was erroneous under the circumstances.
The proper admissibility of this pamphlet was of crucial significance to a recovery in this action since one of the plaintiffs’ theories upon which they relied was that the defendant had failed to comply with
At the conclusion of the evidence and prior to the summations by counsel, the defendant filed a motion for submission of interrogatories and a motion for separate verdicts. The former motion was denied summarily; the latter motion was also denied, hut after some consideration. Exceptions were taken by the defendant with respect to both rulings. It was the duty of the court to grant the defendant’s request for separate verdicts and for proper interrogatories where the complaint contained two counts since the defendant had the right to save itself from the implication of a general verdict by seeking from the jury separate verdicts and answers to proper interrogatories; its failure to do so was erroneous. Sheeler v. Waterbury, 138 Conn. 111, 114, 82 A.2d 359; Decker v. Roberts, 125 Conn. 150,
It is unnecessary to discuss the defendant’s remaining claims of error.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
Under questioning by the court Frigon stated: “That particular eopy is one of a few very rare copies of that code. And that was obtained from the state in relationship to another case. And it was accompanied by a letter from Doctor Foote, and that was ’69 it was in effect. The state typed that 'In effect 1969.’ Nobody else did.” He went on to state that: “I know that that is the code that was in effect at that time, yes, sir,” without any other supporting qualifications.
The defendant objected as follows: “[Tjhere’s no certification of . . . [the pamphlet] which is required by the statutes as I read them, so I have no way of verifying that what Mr. Frigon says is, in fact, true.”
The court charged the jury in part: “Now, in addition to the common law negligence which has been alleged, there’s also been reference made to certain statutes of the State of Connecticut, and also to regulations of the State Board of Health. Now, insofar as this is concerned, under our law we refer to this as statutory negligence. And statutory negligence consists of a violation of a statute which sets up or prescribes a rule of conduct to be followed by a person in a given situation. The violation of such an applicable statute by one in a situation governed by it, of course, is negligence per se. That is, it must be found to be negligence as a matter of law.”