*1 of servic- that other expenses now argue defendants have necessarily contract would listing could amount the plaintiff further reduced the project. earn from the Tidelands have expected Ducci Electric in Essex Group the evidence Unlike Co., 525-26, (1980), Inc., was in this case the hearing the evidence adduced at in kind or in amount, so either clear, in the to find an abuse discretion us require in the amount garnishment trial court’s order $60,000.

There is no error. concurred. judges

In this the other opinion Hickey J. al. et al. Alan Harold et G. Seals Js. J., Peters, Healey, Armentano Shea, Speziale, C.

Argued November March —decision released *2 T. Nixon,

Kevin was whom, brief, with on Colella, John E. the appellant (named plaintiff). for Bottner, T. Joel was on the brief, with whom, Shelley, Joseph F. Jr., (defendant for the appellee John Errichetti Company). brought H. J. This action was

Arthur Healey, father, and his by the Harold Seals plaintiffs result injuries for as a of Seals, damages Lawrence on accident Harold in an automobile by received awas Harold Waterbury.1 September defend- by in an automobile, passenger operated father, Alan’s Alan and owned Hickey by ant con- of it went out Donald when Hickey, defendant instituted The. was trol and struck a action pole. alleging negligent Hickey the defendants against the defendant automobile, against operation commissioner its (through state Connecticut city Water- and defendant transportation) against highway, defective alleging bury Restau- Gentile’s Gentile Armond defendant d/b/a injuries damages personal sought plaintiff Harold Seals The and damages for medical sought Seals plaintiff Lawrenee and the son, his on behalf of incurred him expenses out-of-pocket other September 27, 1975. on Harold, was a minor who alleging Shop violation of the Dram rant Act against Company the defendant John Errichetti allowing (Errichetti) alleging negligence in water thereby causing escape property from its dangerous highway. trial, condition Prior to on plaintiff Harold Seals settled with defend- Hickey, Hickey, Alan Donald state Connecti- ants collectively city Waterbury, (hereinafter cut and defendants), total released for the referred to both sum of action was withdrawn $52,500. plaintiffs as to the released defendants. *3 against jury the a as went to trial before

The case jury The Errichetti.2 and defendants Gentile the in Harold a verdict in favor of Seals returned of favor a in amount of and verdict $65,000 jury of The in the amount $20,000. Lawrence Seals defendant of a verdict in favor the also returned Gentile.

After Errichetti filed two motions: verdict, the entry judgment with its in of accordance for motion referring payment the of special to the defense their answers Errichetti amended and The defendants Gentile $52,500 by the released payment adding the of special of by defenses Erriehetti John of the defendant special The defense defendants. Company stated: from payment already received in this matter have “The Plaintiffs forty-nine Hickey in amount Hickey P. the J. and Donald Alan thousand, from the State ($49,500) and hundred dollars five of three total amount City Waterbury in the and Connecticut ($3,000). thousand dollars setoff, pursuant pleads said amounts as “The Defendant Statutes, any from verdict General Connecticut (a), 62-216 [sic] case." may against in this this Defendant rendered 52-216a, Statutes Eollowing procedure out General set no jury and evidence special were not submitted these defenses at trial. payment was introduced of such by plaintiffs to the the released defendants $52,500 aside the verdict.3 In the and a motion to set former moved “that enter the Court motion, Errichetti against Judgment [Errichetti] said Defendant in accordance verdict and accordance with (a) § 52-216 General Statutes with Connecticut by verdict reduce said and that Court [sic]; fifty-two hundred dollars thousand five amount of already ($52,500) the Plaintiffs.” received denied plaintiff the court Seals, Lawrence to the As stipulated that it was “inasmuch as motions these paid released defendants $52,500 none ordered him paid his benefit”4 and or for was against for the sum judgment Errichetti his favor granted the defend however, $20,000. court, plaintiff order Seals, Harold motion as to ants’ favor is in his $65,000 “the verdict deducting adjusted by hereby $52,500 therefrom against judgment in his favor enter plus $12,500 sum of in the Errichetti defendant aside to set the motion . . .” It denied . costs ($52,500) stating was the deduction verdict entry motion *4 under the properly considered its in set out judgment reasons as for other as well post-trial The opinion motions. lengthy on the Judgment “entry appealed of the plaintiff from has defendant the plaintiff on Harold G. Seals for the according Judgment to to Enter Motion Errichetti’s Special Defense.”5 its first also Errichetti by the defendant aside filed to set The motion special first defense. with its judgment in accordance sought in aside a to set grounds of the motion the other ruled on court relevant here. not manner no claim that “there is *5 prejudices party . . . .” Section 52-216a was amended in 1977 in a manner not to critical

any of the issues raised in appeal. 1977, See Public Acts No. 77-604, 33, July 6, effective 1977.

342 render that clearly standards would portion under statute unconstitutional the void-for-vague ness doctrine.” that a as recognizing judgment While of a state statute be made in vagueness must state court constructions of that light prior Wainwright Stone, 414 v. U.S. statute; 21, see e.g., United L. (1973); Ct. 38 Ed. 2d 22-23, 94 S. 179 190, Vuitch, States 91 Ct. 62, 1294, 402 U.S. S. 71-72, Disciplinary Coun L. Ed. 2d 601 28 Officeof Campbell, sel Pa. 483 472, n.7, 463 424 47 926, 1139, cert. U.S. 96 S. Ct. denied, (1975), the trial determined that 2d L. Ed. 336 (1976); Fritz 52-216a. judicial gloss” “no such gave doc derived the void for vagueness have

Courts of due guarantee the constitutional proc trine from Pennsylvania, 382 U.S. 399, Giaccio See, e.g., ess. L. 2d 447 (1966); 15 Ed. S. Ct. 518, 86 402-403, Jersey, v. New Lanzetta S. Ct. “The Void-for- See (1939). generally L. Ed. 888 Court,” the Supreme Doctrine in Vagueness be stated fairly It can (1960). L. Rev. U. Pa. “ ‘the exaction stems from attack vagueness [a] so or standard which [is] to a rule of obedience stand rule or be no really indefinite as and vague Sugar v. American A.B. Co. Small at all.’ ard Refin Ed. L. Co., S. Ct. U.S. [267 Anonymous, Conn. State (1925)].” noted have A.2d 939 We 163-64, vague the so-called analysis of the accepted “[s]ince considera upon based part, is, large doctrine ness requirements due process of the traditional tions two those standards, nondiscretionary notice upon founded reality, are, claims treated and thus premise same common Coventry, McKinney one.” Connally Con- General *6 struction Co., 269 U.S. 385, 46 S. L. 391, 126, Ct.

Ed. 322 (1926), a case a statute involving imposing criminal sanctions its the United violation, States Supreme Court succinctly explained notice doctrine which upon the vagueness doctrine rests, stating: statute which either or “[A] forbids requires of an doing act terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its vio- application lates the first essential of due process of law.” McKinney Coventry, v. 617. In supra, short, “[d]ue process a requires statute afford a person ordinary intelligence reasonable opportunity know what McKinney is or permitted prohibited.” Coventry, 618 and cases cited therein. supra, Under the due clause of the fourteenth process amendment, doctrine vagueness applicable is to the enactments of state legislatures. See, e.g., A. Edgar Co. v. Levy Leasing Siegel, 258 U.S.

242, S. Ct. 66 L. Ed. 595 (1922).7 Application us vagueness standard to the statute before is complicated by general understanding, we civil demon- statutes are share, required strate a lesser than are crim- degree specificity Jacksonville, inal v. Papachristou See, e.g., statutes. 31 L. Ed. 2d 110

405 U.S. 92 S. Ct. 156, 162, York, Winters New v. U.S. (1972); Borders, Shobe 92 L. S. Ct. Ed. 840 is so This (Mo. App. 1976). S.W.2d even standard though common-meaning applies DeGeorge, Jordan 341 U.S. to both. See, e.g., S. 95 L. Ed. 886 230-32, 71 Ct. vagueness applicable Congress under is to acts of doctrine process fifth amendment. See Giaccio the due clause of

Pennsylvania, 518, 15 L. 2d 86 S. Ct. Ed. Grocery Co., Ct. (1966) ; 41 S. United States Cohen U.S. 65 L. Ed. 516 danger

“The initial vague statute Anonymous, State of fair warning.” absence *7 164. Persons may by who be affected supra, 52-216a should able to determine what conduct be or of the affect on the court that procedure part them or required is reference to permitted by together judi- statute with whatever wording wording. cial be available to its gloss may interpret Pickering, State 180 Conn. 54, 64, See, e.g., that together The statute with be if must judicial any, reasonably specific gloss, to a ordi- so as afford enough and direct person to know reasonable opportunity a nary intelligence this civil statute. have by We what is permitted a chal- vagueness out that in order to repel pointed its with ade- “a statute must state standard lenge, bound- sufficiently mark distinct quate clarity Lack of law administered. fairly to be aries for offensive itself, is in or of however, not, precision, v. United Roth of due to the requirement proces. L.1 States, [491-92,] 77 S. Ct. Anonymous, supra. State 2d 1498 (1957).” Ed. together with examination Our Frits it what on it that shows put judicial gloss It from sufficiently clear. is apparent is permits intended to be avoided itself the evil statute of the exis knowledge was the jury’s its passage agreement release of claim or tence of any be tend to prej such knowledge might sue, because thoroughly action. to the This a udicial party Frits disclosure that such recognized practical; probative.” than more prejudicial often “was statute’s Madow, itz 273. On supra, Fr have said from we matters jury, keeping removing what policy, the better “expresses ..” may exist.. for prejudice [that] ever possibility Kosko Kohler, 176 Conn. 383, 387, 407 A.2d 1009 We out that the point statement of purpose articulated this statute on its introduction in the General was: “To Assembly prohibit the reading agreements not to sue or releases claims before to the action.” prejudices party jury, often Raised Committee Bill (Emphasis added.) No. 34, Judiciary Committee, 1976 Session. The Regular statement of of a on its introduction purpose bill, into the legislature, may considered in determin its intent. See Miller Education, Board of Harris Planning Commission,

499 (1963). Fritz,

In we said that “may” word as used in 52-216a was permissive and not and mandatory, that its use in that statute “is a clear indication that a rather than a discretionary mandatory duty was Fritz v. Madow, intended.” supra, 272, citing Shulman v. Board Zoning Appeals, 154 conclu (1967). To reinforce this sion we indicated that the fact that this statute uses three times “may” “shall” and once further only claim “the intended to supports legislature distinguish ordinary those words to their according Fritz v. Madow, Jones meanings.” supra, 272; see v. Civil Service Commission, 400 175 Conn. Frits, A.2d When we decided we held (1978).

that conventional rules construction statutory that “may” “may” conferring mean thus required as the of that statute discretion, plain language and adhere to that view in this case. we indicated, in face court, that the trial decide, therefore, We clear embodying a language expression of this plain far in efforts to went too its legislative intent, a constitutional attack. statute against salvage statute When used is clear unam- language its is not subject to modification biguous, meaning v. Civil Commission, Jones Service construction. Lemelin, Hurlbut supra, 509; 155 Conn.

A.2d “Although should (1967). try, whenever to construe statutes to avoid possible, infirmity, they so, may not, doing to its lan- or do violence statute, plain rewrite Long Com- Island Vietnam Moratorium guage.” Cahn, mittee (2d 437 F.2d Cir. 1970), 2d Ct. 41 L. Ed. S. aff’d, “shall” “may” 52-216a, construing in disregarding expressed court also plainly erred use legislative intent because legislative con have it its intent not “may” demonstrated rule which was the common-law strued as “shall” from payments deduction preverdict requiring Tough Kohler, Kosko 387; verdicts. See supra, (1972) ; Conn. 274, 286-87, Ives, Wrecking Corporation, Merberg Bonczkiewicz Dwy 577-78,172 148 Conn. Co., Connecticut A. 95, 92 *9 (2) Torts §885 4 (Second), also Restatement See 104 annot., 98 Damages (2); J.S., C. (3); Comparative “Connecticut’s A.L.R. 931; James, Prob Some Analysis An Statute: Negligence “Con Tait, 207, L. Rev. 6 Conn. lems,” of the Stepchild Rule: Source necticut’s Collateral (1968). 97-98 93, L. Rev. of Damages,” Law Burns the statute. yield must common law It 193 (1977). Gould, under statute, language from the plain is clear that construction, statutory norms accepted and to “may” to mean “may” meant legislature dis- conferring law common altered extent, cretion on the trial court The court, deduct. to find the

endeavoring cannot, statute it so it therefore, construe restates common law rule which the act of legislature, by very enacting statute, plainly abrogate. intended Our conclusion does here not at all contravene the principle that statute is construed as to be “[n]o altering common farther its words law, than It import. is not to be construed as making any innovation upon the common law does not Shaw Railroad fairly express. Co., 101 U.S. Dennis Shaw, L. Ed. 892 [1880].”

Conn. 450, 452, 78

Our conclusion that “may” “may” in means statute accords our Fritz. with like determination In Fritz, unlike this however, no constitutional case, issues were raised. Because the statute has been subjected to constitutional on but attack, one, several have grounds, we different considerations us here than we did in Fritz. Earlier before in this opinion we set on out the void controlling law for vagueness claim; this statute is not unconstitu- tional on that Section ground. 52'-216a, as inter- Fritz, with its “excessive” preted standard, pro- vides a standard sufficient to satisfy due procedural process.8 Fritz, we said it is (p. 273): true that “[w]hile

the jury determines it is also true that damages, the court damages reviews to determine whether 8The upheld United States Court has noncriminal state Supreme against vagueness statutes statutory attack construction where state court alleged has vagueness. removed Minnesota ex See Ramsey Pearson County, rel. v. Probate Court U.S. 60 S. 523, 84 L. Ct. Ed. Bandann To similar effect are Superior Court, Angeles County, Petroleum Co. v. 284 U.S. Los Schoene, Ct. S. 76 L. Ed. (1931), and Miller *10 48 S. Ct. (1928). L. Ed. 568 are In this that

they is adequate. case, apparent such that the verdict returned was of the court refused deduct from it any portion that for the on the ground covenant payment an exces of the amounts did not constitute total two that we recovery.” sive This indicates language that a trial judge, the view the action of approved 52-216a, weight, recogniz is entitled to great under § of the “any” that he not deduct may portion unless from the verdict settlement payments prior are the amount of the verdict payments plus those law. as a matter its exercising excessive this “excessive” to deduct under whether discretion noted the statute already that we have standard from the deduct “may itself that provides This . . . .” money received any verdict amount under exercisable judge, of the trial discretion legal reviewable course, standard, is, “excessive” Birgel Heintz, See, e.g., abuse.9 any for claimed dis That See Lee not unlimited. is although broad, cretion, Lee, While have a itself does standard the “excessive” bounds. and not lack metes it does meaning, precise Anonymous, is an State 165. What supra, See been has of law a matter verdict “excessive” and, cases, importantly, of our in many discussed context of partic in the determined been has acting trial court case. The ular discretion benchmark the accepted has been such matters discretion. of that abuses claimed examining with 52-216a different, is ease Every we, do not appeal but on only reviewable discretion Not judge the trial claims why any party who any reason know of Statutes aeting under General his discretion has abused in the exercise reconsider him to have not also move trial court. *11 the “excessive” standard

judicial gloss embodying of due requirement fair notice not adds to the only discretion. unlimited but proscribes also process delineated those has years Our case law over the to the exercise amenable in manner a parameters thereafter, and, trial court, in the judicial power See, e.g., review. meaningful judicial Mansfield (1978); A.2d 699 New 374, 387 Haven, 373, Conn. Admr. 28; McKirdy, Birgel Heintz, supra, (1955); A.2d 555 Cascio, 142 Conn. Co., 141 Conn. R. N.H. & H. York, New Gorczyca Conn. Maltbie, App. the statute therefore hold Proc. 197. We for vagueness under the void not unconstitutional to hold error for the trial doctrine. It was the contrary. the fact that a statute con-

Nevertheless, does not ground attacked on one stitutional when an it can mean that withstand necessarily us brings on another This ground. attack Frits denies claim that 52-216a as interpreted to trial his constitutional right defendant It law of constitutional jury.10 question presents therefore, is, form and concrete, abstract, Robinson, Taylor of determination. See capable right of trial The defendant has Connecticut under article 19 of the by jury11 first, § which declares “[t]he constitution, adopted This inviolate.” trial shall remain right by jury parties. It was raised argued by the This claim was briefed and it found trial court which did not reach issue because in the vagueness dispositive. issue federal constitution defendant does not claim that e.g., jury See, Robertson guarantees him a trial in this civil case. Apuzzo, denied, cert. 50 L. 2d S. Ct. Ed. is identical to that

language of article 21 of first, § the 1818 constitution, and we have held that secures provision right of a wherever existed when right our constitution *12 Apuzzo, Robertson was in 1818. See adopted v. Conn. 365 A.2d 367, 381, cert. 824, denied, U.S. 50 L. 142, 97 S. Ct. Ed. 2d 126 and (1976), cases cited therein. The defendant claims that Fritz as by “allows the interpreted Trial to Court arbitrarily substitute its judgment for that of the and jury thereby denies to the parties their constitu tional to have right the extent of the damages decided The by jury.” the other plaintiff, on hand, denies that the statute as interpreted the impairs litigants’ to have right issues of fact by decided He jury. argues still jury determines what the damages are and that trial court’s discretion to reduce the verdict an by amount previously in settlement gained is limited “by tradi tional limitations inherent in discretionary author and ity, by ‘excessive’ standard set forth by Fritz v. Madow, Court These limita supra.” he tions, convert stresses, any to question whether to reduce the verdict into one of law. We disagree with the plaintiff. have a constitutional

Litigants right to have ques Dacey v. Connecticut of fact decided by tions a jury. Bar Assn., Conn. 368 A.2d 125 (1976); Gurney, Michaud 168 Conn. 431, 434, Cicero E.B.K., Inc., (1975); 166 Conn. Spencer Good Earth 494, 352 A.2d (1974); Corporation, Restaurant Conn. Spigner, Pinto 163 Conn. (1972); Keegan, Ardoline 302 A.2d 266 (1972); Robinson Baches, 99 A. of to command the seventh amend speaking right

ment to the federal constitution that “the trial shall be States United preserved” seventh Supreme J.) Court said that (Brandéis, amendment that old forms of “does not require It does procedure be retained .... practice introduction methods of new prohibit nor determining actually issue, what facts are the introduction new rules prohibit does it made. New may evidence. these Changes ancient institution devices be used adapt instru an efficient needs and to make present Indeed, justice. in the administration ment of the are essential changes preservation the Amendment limitation right. imposed merely enjoyment right *13 deter the ultimate obstructed, jury be not inter fact by jury mination of issues of omitted.) and citations (Footnote fered with.” Peterson, Ex Parte Ct. 40 S. 309-10, 253 U.S. that “[i]t have said 64 L. Ed. 919 (1920). We of the guarantee of the constitutional is not violative enact legislature trial for the jury to a right jury procedure the form changes which statute institution. the substance if still maintains Main, 80 State 37 A. [1897].” v. 69 Conn. 123, 131, v. Per A.2d 226 rella, 129 State 144 228, 231, Conn. (1957). “includes by right jury

The constitutional the court, rather than to have the right jury, there when issue of damages, factual upon pass of opinion difference is room for a reasonable men to the amount fair-minded among damages be awarded. question should in these times injury cases, especially personal Prosser one. is a difficult always changing values, 352 Rickman, 133 Conn. 50 A.2d 85 [1946].

Assessment of damages is within the peculiarly of the and their province jury determination should be set aside when the only verdict exces plainly sive and exorbitant.” Slabinski Dix, Conn. 625, 628-29, “The amount of (1952). the award is a matter within of the the province Gorczyca v. New N.H. & York, trier of the facts.” H. R. Co., 701, 703, (1954). Conn. Weil, See Vandersluis Gondek Pliska, 135 Conn. A.2d recognize While we a court to set aside a verdict under

right jury we this funda proper circumstances, acknowledge obviously mental to trial as “one right by jury legal immovable limitation on discretion court to set since verdict, aside a of trial have includes right jury right rea issues of fact as to which there is room for a fair-minded sonable difference of opinion among court. men and not passed upon by Camp Booth, 160 Conn. A.2d Haven, New [1970].” Mansfield the defendant this statute agree with We invade the allows the court to interfere with and *14 toit function of the factfinding jury by permitting its for that the There jury.12 substitute of judgment for the that “it is no but is question competent to a right to the exercise of the subject legislature regulations procedure to conditions and jury inadequacy appears note that to be the dissent’s 12 We also what judge to make to refuse “which would authorize a trial test compensa total only plaintiff left with deduction where the would be elearly also inadequate would as a matter law” tion which by jury. our right See litigant’s to trial the violate remittitur discussion additur and mfra.

353 justice promotion public the and the better right long the the is not welfare so as substance of right adversely the is not or the exercise of affected prevented.” supra, 231. This rella, v. Per State competency; it invades the statute falls without [jury] See v. institution.” State “substance of the judge giving supra. this discre rella, Per In the trial jury, rendered the the verdict tion deduct from his constitutional the defendant the statute denies damages right he must the the to have assess pay. the where court Unlike circumstance Deedy v. Mars remittitur; an see additur or order (1977); 1032 375 172 A.2d den, Conn. Remington, 61 A. 963 310, 296, gives v. 78 Conn. Noxon (1905); the trial more, 52-216a,without option adjust power without verdict of a new trial. purpose § 52-216a we is,

Commendable are constrained it unconstitutional. We must hold upon heavy burden that rests so, to do aware constitutionality after attacking statute, of a one every presump carefully making considering it and validity. See of its favor tion and intendment 370 Olds, State (1976); 145, 171 Conn. 141, Menillo, State (1976); 163 Conn. Brown, Kellems A.2d (1972), appeal dismissed, (1973); Edwards L. 2d 678 34 Ed. S. Ct. A.2d Hartford, 141, 145, 139 Conn. unconstitutionality applies holding of Our parts the statute are entire because statute unconsti independent so that severable not impair other. part tutionality need of one A.2d York, Conn. See Collins Miller, State portion where other words, *15 354 part

of the statute is the valid invalid, can stand only part mutually if it and the invalid are not so dependent legislative connected and as to indicate a they may inseparable. intent that See State Walsh, (1958); 146 Sul, Conn. 78, 89, 147 A.2d 686 (1948); v. Jenks, 135 Conn. 210, 217, 773 Branch, v. Lewerenz, 75 Conn. 53 A. 658 possible separate it.is not “Where that part of a law which is unconstitutional from the rest Lynch of the law, the whole law fails. U.S., (1934); U.S. 571, S. L. 840, Ct. 78 Ed. 1434 Hill v. Wallace, U.S. 42 S. 44, Ct. 66 L. Ed. 453, (1922); Harrison v. St. Louis & S.F.R. Co. 232 U.S. (1914); S. Ct. 58 L. Ed. 621 Gherna v. (1915).” State, 16 Ariz. P. 344, 146 494 United Farm Sup. Workers Nat. Union v. Babbit, 449 F.

(D.C. 1978). Separability essentially Ariz. involves legislature two considerations: must have separability intended and the statute itself must be capable separability. Dorchy See v. Kansas, Ct. S. 68 L. Ed. (1924); Statutory 2 Sutherland, Construction (4th Ed.) purpose § 44.03.The dominant of 52-216a prevent agreements was to or releases referred being to in the statute from read to the or introduced into evidence. In order to allow the any agreement court to utilize or release deduct portion from the verdict, of ^ which we have held unconstitutional was included determining in the statute. In entire statute properly must we can fall, consider whether the legislature would have enacted it without the invalid portion. See Carter Carter Coal Co., U.S. 313-14, S. Ct. 80 L. Ed. 1160 Santa Superior Barbara District v. School Court, Cal. 3d 530 P.2d 605 conclude We portion that would not. That of 52-216a which *16 attack provides the constitutional remains after not to tortfeasor any with “An only: agreement any in a tortfeasor a release of action or legal bring any in to a or jury not be read shall action, cause at in evidence either by party introduced way other cause of action trial of such time any during any nor shall joint tortfeasors, other against any claim release of to sue or other agreement action in such or defendants among any plaintiffs a jury introduced to or in other any way be read direction to no absolutely . . This offers . after take concerning steps

court what have what we light verdict has been returned. entire and the is clearly inseparable said, § statute must fall. prohibits that portion cannot allow

We into evidence or introduction to reading jury 52-216a to stand referred to in the agreements § to render In order still another reason. alone for to be called upon we would workable, that part cannot do. This we the remaining part. implement statutes. Aspetuck a revisor do not act as We Commissioner, Tax Club Country Valley Tax A.2d 328 (1980); Ziperstein Conn. 5, 423 A.2d Commissioner, 178 Conn. the legislative is the province That our hold- In light branch. judicial not the

branch, unconstitutional found 52-216a has been to trial right jury defendant’s violating as constitution, procedure under the Connecticut case, those presented circumstances revert pre- will future legislation, subject in such out of 52-216a as set the enactment existing Kohler, 176 Conn. cases as Kosko Tough Ives, 1009 (1978); Bonczkiewicz Merberg 286-87, Wrecking Corporation, 577-78, 172 A.2d 917 is set

There error aside part, judgment the ease is remanded with in accordance before hearing damages *17 the defendant Errichetti. as opinion against In this and opinion, J., C. Speziale, Peteks concurred. Js., Abmentano, The majority opinion J. (dissenting).

Shea, I applaud me of ambivalence. feeling leaves with a Fritz the notion early sponsored by the demise of 268 (1979), Madow, of light trial without benefit judges, imposing upon from this landmark in the form guidance or in ride herd errant upon jurors the to duty court, territory lying within the broad awarding damages a matter as inadequacy excessiveness between reached the decry I nevertheless conclusion of law. Statutes the that a General majority statute, by is com- the which salutary purpose 52-2'16a, unconsti- in must be declared the mended opinion, The only in this result. order to achieve tutional to this novel necessity problems dictating approach on our of error recognition from a belated arising the deviat- by overruling resolved ordinarily part, to foster to be a determination seems ing precedent, infallibility. of our the myth the use majority of the upon

The fixation of “shall” “may” portion instead word deduct pay- to authorizing verdict is tortfeasors from a made other by ments the frustration rationale asserted has achieved. legislative opinion purpose In Fritz the “sole issue on was stated to be appeal” one tortfeasor for a coven- “whether a payment by is in of the verdict sub- ant not to sue that excess neces- tortfeasor joint returned sequently against or tortfeasor to a reduction sarily entitles the joint erasure of verdict as to damages.” (Emphasis Madow, Fritz correctly 271. added.) supra, negative question responding in Fritz relied use of “may” opinion upon contrast used in the same “shall,” elsewhere our intention to vest the broad statute, indicating discretion found now the trial upon judge of trial infringe right upon Loiselle, J., recog- jury. dissenting opinion, under nized the existence of a narrower discretion the statute “similar to the exercised discretion the court when either an additur or a remittitur *18 is made.” 276. An additur or a remittitur Id., when trial in of only the exercise granted judge this discretion determines that a verdict is inade- or excessive as a matter of law. The use of quate rather than “shall” in “may” may readily § be as an indicating intention on the explained part of legislature where the deduction from that, of the verdict tort- payments received from joint feasor would leave a with total plaintiff compensa- tion for the losses legally inadequate sustained, the trial his exercising viewed limited judge should be no deduction made. discretion, Bitta-Bassola, Inc., Fronczek Bella Conn. 102, 103, 328 A.2d substitution (1973).

“shall” would “may” implied have deduction must made in event without con- any be total sideration of the of the amount adequacy received plaintiff.

It is doubtful if the court had that, been aware of the invasion of the constitutional prerogative Fritz which the opinion sanctioned, same construction 52-216a would have been cannot to the an adopted. impute Legislature “We intent an unconstitutional and a statute law pass should if it can done, be construed, reasonably valid.” State Muolo, so as to make Conn. corollary A. 401 “A further is where a statute admits of two that, reasonably and the other on the constructions, one valid invalid courts should ground unconstitutionality, adopt even the construction which will the statute uphold construction not be the most though obvious one.” Adams Rubinow, Doe, State these were (1962), principles construe the word “shall” in a statute employed and not in order to avoid mandatory as permissive which would unconstitutionality of its question court, I reason why otherwise be raised. see no we now hindsight possess, with the benefit 52-216a, does not adopt interpretation suggested by dissenting opinion implicitly Fritz, to refuse judge would authorize a would where the only plaintiff to make a deduction inadequate total which is be left with compensation of law. Such a construction as a matter its language consistent with wholly statute *19 “ reading o of purpose, prohibit [t] statement before or releases of claim not sue agreements a party....” which often jury, prejudices this modest procedural in declaring I cannot join trial a jury because of unconstitutional reform from an interpretation arising wholly infringement prefers which the majority opinion of the statute prec- overrule the erroneous rather than perpetuate it birth. gave edent which reason

I do not understand further issue another trial upon the case for remanding determined been already which have damages, court con the trial amounts discretion, of trier range the broad lay cluded within of law. a matter nor excessive as inadequate neither suggests at no point The majority opinion reaching its discretion trial court abused invalidation of The complete conclusion. trial leaves has achieved majority

which the the common- but to apply with no discretion the other made by deduct the payments rule and law been accom has already a task which defendants, in regard of fact no issue There is disputed plished. the amount or of those making payments

to the the issue for a new trial on remand them. The need to a subject parties simply would damages where an obsolete retrial under procedure less tortfeasors would from other received amounts the absence of Even in the jury. disclosed to to separate had discretion judge 52-216a, $ tortfeasors of other involving payments the issues Practice and damages; trial of liability from the to such relating pay if the facts Book 283; and, issues resolve those disputed, ments were Kohler, Kosko without a See jury.

383, 387, 407 I dissent. given For reasons above, notes court's memorandum The trial for medical Lawrence Seals the father in of the favor that verdict 52-216a.” under § should be reduced expenses, etc. appeal entry of the cross “from filed a Errichetti The defendant it later withdrew. Plaintiff” which Judgment for the The plaintiff claims that the trial court erred: (1) in that holding General Statutes as inter 52-216a,6 § Fritz v. Madow, preted by this in is unconstitutional under (1979), the void for vagueness doctrine of due process in clause; that (2) the word holding “may,” in appears must be construed as mean 52-216a, § “shall” in order to constitutionality uphold of 52-2'16a. He also § claims that 52-216a as inter § preted by Fritz Madow, does not supra, deny the defendant his to a trial right jury guaranteed Connecticut constitution. address first We claim of the plaintiff by Fritz is not unconstitu 52-216a as interpreted § tional under the void for doctrine vagueness thereby violating due clause. The trial court process with the defendant agreed Errichetti con “any struction of 52-216a which would a grant discretion § to the trial judge ‘adjust’ verdict without jury agreements “Beading General or Statutes 52-216a entitled prohibited” provides: agreement any releases jury “An with bring legal tortfeasor not to action or a release of a tortfeasor any action, way any cause of shall not be read to a or other party any during in evidence either introduced at time the trial against any joint tortfeasors, such cause of action other nor shall any agreement among any plain other not to sue or release claim tiffs any way or defendants in such or in action be read other intro jury, except duced to the conclusion court at deduct from the any money by any party verdict amount of received pursuant agreement to such action to such not to sue or such release Nothing prohibit claim. in this section shall introduction agreement or release in a trial court.” legislative An history examination into the concerning passage of Public Acts 76-197, No. codified General Statutes 52-216a, yields very purposes little. The statement of on the original however, prohibit bill reading agree- recites: “To ments to sue or releases of claim jury, before a which often