120 A.2d 546 (Conn. 1956), Swanson v. Boschen

Citation120 A.2d 546, 143 Conn. 159
Opinion JudgeBALDWIN, J.
Party NameAxel SWANSON et al. v. Lillian G. BOSCHEN.
AttorneyRobert J. Woodruff, for appellant (defendant)., Richard C. Hannan, New Haven, with whom was Ellsworth B. Foote, New Haven, for appellees (plaintiffs). Robert J. Woodruff, for the appellant (defendant). Richard C. Hannan, with whom was Ellsworth B. Foote, for the appellees (plaintiffs).
Judge PanelIn this opinion the other Judges concurred. Before INGLIS, BALDWIN, O'SULLIVAN, DALY and BORDON
Case DateJanuary 27, 1956
CourtSupreme Court of Connecticut

Page 546

120 A.2d 546 (Conn. 1956)

143 Conn. 159

Axel SWANSON et al.


Lillian G. BOSCHEN.

Supreme Court of Errors of Connecticut.

Jan. 27, 1956

Page 547

Robert J. Woodruff, for appellant (defendant).

Richard C. Hannan, New Haven, with whom was Ellsworth B. Foote, New Haven, for appellees (plaintiffs).


[143 Conn. 160] BALDWIN, Associate Justice.

This is an action brought by the plaintiffs pursuant to a federal statute to recover money paid as rent to the defendant in excess of the amount fixed by the area rent director. 61 Stat. 199, as amended, 50 U.S.C.App. § 1895 (Sup. 4, 1951) [50 U.S.C.A.Appendix, § 1895]. The plaintiffs demanded as damages not merely the amount of the overcharge but three times that amount plus reasonable attorney's fees. The statute allows recovery of three times the overcharge[143 Conn. 161] as a penalty, if the violation was wilful or resulted from the failure of the landlord to take practicable precautions against its occurrence. The plaintiffs alleged that on May 1, 1950, they rented an apartment in premises owned by the defendant in West Haven for a weekly rental of $15 and that they had paid this amount weekly until December 21, 1951. On December 18, 1951, the area rent director ordered a decrease in the rental to $8 a week, effective May 1, 1950. He sent a notice to the defendant to refund to the plaintiffs within thirty days the amount collected in excess of the rent ordered. The defendant refused to make the refund. In her answer, she admitted the collection of the overcharge and, in a special defense, she denied any wilfulness or failure to take practicable precautions against any violation of the rent regulations. She also filed other special defenses and a counterclaim which, with one exception, need not be considered in the disposition of this case. The defendant claimed a jury trial, and the case was docketed as a jury case. The plaintiffs moved to strike the case from the jury docket, and the court granted their motion. The case was tried as a court case and resulted in a judgment for the plaintiffs from which the defendant has appealed.

The defendant assigns, among other errors, the court's action on the plaintiffs' motion. She claims that she has been denied her constitutional right of a trial by jury. Section 7936 of the General Statutes (as amended, Cum.Sup. § 2387c) provides that, within thirty days after the return day or within ten days after an issue of fact is joined, the following named classes of cases, upon the claim of either party, may be entered upon the jury docket of the Superior Court or the Court of Common Pleas: [143 Conn. 162] 'Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the doings of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity. * * * All cases not entered in the docket as jury cases * * * including actions wherein the plaintiff sues for a debt due by book to balance book accounts, actions wherein an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus, prohibition and ne exeat, complaints for divorce and all other special statutory proceedings which, prior to January 1, 1880, were not triable by jury, shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact, other than those hereinBefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases.' These provisions of the statute were enacted in substantially their present form in 1879. Public Acts 1879, c. 83, § 22.

Page 548

Article first, § 21, of the constitution of this state provides: 'The right of trial by jury shall remain inviolate.' We have held that this secures the right of a jury trial wherever that right existed when our constitution was adopted in 1818. United States Fidelity & Guaranty Co. v. Spring Brook Farm Dairy, Inc., 135 Conn. 294, 297, 64 A.2d 39, 13 A.L.R.2d 769; State v. Torello, 103 Conn. 511, 514, 131 A. 429; Roy v. Moore, 85 Conn. 159, 167, 82 A. 233; Seeley v. City of Bridgeport, 53 Conn. 1, 2, 22 A. 1017; La Croix v. Fairfield County Com'rs, 50 Conn. 321, 327; see Goddard v. State, 12 Conn. 448, 454; 31 Am.Jur. 557, § 8. A similar rule applies as to the provisions of the federal constitution guaranteeing a jury trial. National [143 Conn. 163] Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; 31 Am.Jur. 557, § 8.

The cause of action stated in the complaint is statutory. It seeks, however, to collect an overcharge of rent and to enforce a penalty for the wilful or neglectful violation of an order of the area rent director. The defendant has filed a special defense in which she alleges that she acted neither wilfully nor neglectfully. If the trier finds her allegations true--and she has the burden under the statute of establishing their truth--she can be held only for the amount of the rent collected in excess of the amount fixed by...

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