Callahan v. Jursek

• Decision Date: 01 March 1924
• Citation: 100 Conn. 490,124 A. 31
• Court: Connecticut Supreme Court
• Parties: CALLAHAN v. JURSEK.

124 A. 31

100 Conn. 490

CALLAHAN v. JURSEK.

Supreme Court of Errors of Connecticut.

March 1, 1924

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Action by Francis H. Callahan against Karl C. Jursek for damages for fraudulent representations in the sale of a stop signal device, brought to the superior court in new Haven county and tried to the jury. Verdict and judgment for the plaintiff and appeal by the defendant. No error.

Thomas R. Robinson and Vincent P. Dooley, both of New Haven, for appellant.

David M. Reilly, of New Haven, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and WEBB JJ.

WHEELER, C.J.

The plaintiff offered evidence to prove that he entered into a contract of purchase and purchased of the defendant the agency for the sale distribution of the Comer Auto Stop Signal device for the state of Connecticut, upon the representations as set forth in the complaint and made to him by the defendant; that these representations were false and fraudulent and were made for the purpose of inducing him to enter into this contract; that the plaintiff believed them to be true and in reliance thereon entered into the contract and paid the defendant in consideration thereof $1,700; and that this device was at the time of the contract valueless.

Two rulings on evidence are made the subject of appeal. One of these representations was that certain states by law compelled the use of this stop signal device. To the offer of proof of this the defendant objected because immaterial and that whether or not such laws existed could not be made the basis of a misrepresentation, and excepted to the ruling admitting this evidence. The ruling was correct. The existence of such laws would tend to indicate the value of this device and might well have been an inducement to the making of the contract. Such a representation is one of fact.

The defendant also excepted to the admission in evidence of an advertisement on the ground that it had not been sufficiently identified. Counsel were in error as to the failure of identification. The plaintiff had already testified that the defendant called his attention to this advertisement. The advertisement tended to prove that three states required by law the use of this device. The evidence as to whether the defendant had sold his home some time after this contract as tending to prove a fraudulent intent in the making of this contract cannot be considered since the defendant failed to take an exception to the ruling admitting this evidence.

The third error assigned, the overruling of the defendant's motion for a directed verdict, cannot be taken under our practice. " The failure of the trial court to direct a verdict is not in this state assignable error." Kiely v. Ragali, 93 Conn. 454, 458, 106 A. 502, 504; Dimon v. Romeo, 99 Conn. 197, 121 A. 352; Lines Co. v. Hartford City Gaslight Co., 89 Conn. 117, 93 A. 129.

The fourth assignment of error is the refusal of the court to submit to the jury written interrogatories claimed by the defendant. The brief of the defendant urges: " The purpose of the interrogatories was to protect the defendant against the implications of a general verdict." In Freedman v. N. Y., N.H. & H. R. Co., 81 Conn. 601, 612, 71 A. 901, 905 (15 Ann.Cas. 464), we say:

" In the absence of any mandatory enactment, it is within the reasonable discretion of the presiding judge to require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of justice may require."

That is still our general rule, but stated without reference to the rule we lay down in Aaronson v. New Haven, 94 Conn. 690, 697, 110 A. 872, 874 (12 A.L.R. 328):

" In such cases the defendant may protect itself from any possible injustice, when the complaint contains two or more counts, by asking for a separate verdict upon each count, or when two or more issues are presented in one count, by asking the court to propound special interrogatories to the jury."

In applying this rule in Wladyka v. Waterbury, 98 Conn. 305, 313, 119 A. 149, 152, we said:

" A general verdict upon a complaint setting up two causes of action imports that the jury has found all the issues for the plaintiff; hence if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported by credible testimony or authorized by law, since it cannot be known that the verdict was based upon the invalid cause of action."

If the defendant is to be protected against the implications of a general verdict he must have the right to invoke the remedy in the classes of cases referred to in Aaronson v. New Haven, supra, by submitting to the jury special interrogatories. The submission of proper interrogatories in cases " where the complaint contains two or more counts or when two or more issues are presented in one count" is a remedy not dependent for its exercise upon the discretion of the court.

In this case each representation set forth in the interrogatories followed those of the complaint and all were contained in one count. If each representation was found to be false, made with intent to deceive and relied upon by the plaintiff to his damage, there were as many causes of action as there were representations, and the defendant was entitled to have the jury answer each special interrogatory, properly framed, as to each of these causes of action. The same rule would hold in actions based upon several grounds of negligence stated in a...