Bernier v. National Fence Co.

• Decision Date: 20 February 1979
• Citation: 176 Conn. 622,410 A.2d 1007
• Court: Connecticut Supreme Court
• Parties: Sylvia BERNIER, Administratrix v. NATIONAL FENCE COMPANY. (ESTATE of Walter F. BERNIER)

Page 1007

410 A.2d 1007

176 Conn. 622

Sylvia BERNIER, Administratrix v. NATIONAL FENCE COMPANY.

(ESTATE of Walter F. BERNIER)

Supreme Court of Connecticut.

Argued Dec. 12, 1978.

Decided Feb. 20, 1979.

Milton L. Jacobson, Norwich, with whom was Carl D. Anderson, Norwich, for appellant (plaintiff).

Thomas J. Groark, Jr., Hartford, with whom was Sharon S. Tisher, Hartford, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

BOGDANSKI, Associate Justice.

On March 28, 1972, the plaintiff's decedent, an employee of the state highway department, was fatally injured while working as a member of a highway crew in the town of Killingly. At the time of the decedent's death the defendant, the National Fence Company, was engaged, pursuant to a contract with the state of Connecticut in excavating post holes for the erection of a large sign to be located at the intersection of routes 12 and 6. The accident, which resulted in the decedent's death, occurred when a truck-mounted hole digger, operated by employees of the defendant, came into contact with high tension wires overhead, resulting in electrical shock to the defendant's employees. The plaintiff's decedent, who was working nearby, rushed to the scene and in attempting to rescue the employees was himself fatally electrocuted.

This case involves an appeal taken from the judgment rendered upon a verdict for the defendant in the wrongful death action brought against the National Fence Company by the plaintiff, Sylvia Bernier, as administratrix of the decedent's estate. The plaintiff's complaint alleged that the decedent's death was caused by the negligence of the defendant, in that its employees operated the post hole digger in close proximity to overhead power lines without notifying the power company and without requesting that the power be shut off. In its answer the defendant denied that it or its employees were negligent and alleged by way of special defense contributory negligence and assumption of risk on the part of the decedent. The state of Connecticut intervened as coplaintiff, pursuant to § 31-293 of the General Statutes, in order to recover the workmen's compensation benefits paid to the decedent's widow and children. The intervening complaint, however, was not read to the jury and the state did not participate in the trial.

Trial began on Thursday, December 4, 1975, and, at the conclusion of the evidence on that day, the court recessed until Tuesday, December 9. On Tuesday, the second day of trial, the court called counsel into chambers and advised them that it had been informed that a newspaper article concerning the case had appeared in the New London Day newspaper on Saturday, December 6, 1975, and that the article included a reference to the ad damnum clause of $500,000. The court informed counsel that it was unable to give them any other details as the court had not itself seen or read the article. The court further advised counsel that on Thursday, December 4, it had been approached by a reporter for the New London Day who requested and was granted permission to examine the pleadings in the case. After the court's recitation, counsel made no further inquiry of the court regarding these matters.

The court then called the jury into the courtroom and inquired whether any of the jurors had read the newspaper article concerning the case. Only one of the jurors, Philip Nahas, indicated that he had. The court thereupon excused the rest of the jurors and asked Nahas whether he had discussed the article with anyone on the jury. Nahas answered that he had not. The court then admonished Nahas as follows: "Please . . . put that out of your mind completely. . . . I am going to ask you please not to discuss it at all with any of the other jurors," and further instructed him that "(t)hey (the jurors) are not to ask any questions about the article, not to go looking for the article." When the court asked counsel whether they had any questions to ask of Nahas, counsel replied that they had no questions. The court then offered counsel the opportunity of having Nahas excused from jury duty. This offer was, however, declined by counsel.

The court thereupon called back the rest of the jurors and instructed them not to look for the article, cautioning them that if any further articles concerning the case should appear, they were to avoid reading them. The court then admonished the jury as follows: "We don't want you to be influenced one way or the other, favorably or unfavorably, to either side in the matter. We want you to make the determination based upon what you hear here in the courtroom after hearing all of the evidence, all of the witnesses upon examination and cross-examination . . . . What we really want is a fair, impartial, intelligent determination by this jury of the merits of this particular case; so please don't seek out information that does not pertain to you and don't seek out any information that might unduly prejudice you."

Not until January 7, 1976, after a verdict for the defendant had been returned, did the plaintiff obtain and read the aforementioned article. It was then discovered that the last paragraph of the article mentioned that the state of Connecticut was a coplaintiff in the suit and was seeking reimbursement for the workmen's compensation benefits which it had paid to the decedent's wife and children. The plaintiff thereupon filed a motion in arrest of judgment and a motion for a new trial on the ground that the jury had been prejudiced by Nahas' exposure to the reference to workmen's compensation in the newspaper article.

The plaintiff has briefed and argued the following claims: (1) that the newspaper article, read by at least one juror, was prejudicial to the plaintiff; (2) that the court erred in denying a new trial when "the court had been instrumental in causing the article to be published, in giving erroneous and belated information to counsel, and in failing to take adequate and thorough steps to cure any prejudicial effect occasioned by the article itself"; and (3) that the court erred in admitting into evidence work rules pertaining to employees of the state of Connecticut, thereby allowing an issue to be raised which was not framed by the pleadings, i. e., the defendant's claim that the state, although not a party to the action, was negligent and that the negligence of the state was the proximate cause of the injuries to the decedent.

The plaintiff argues first that the court was "instrumental in causing the article to be published," and therefore that the court had a "unique obligation" and special...