DeMilo v. City of West Haven

• Decision Date: 05 April 1983
• Citation: 189 Conn. 671,458 A.2d 362
• Court: Connecticut Supreme Court
• Parties: Michael DeMILO et al. v. CITY OF WEST HAVEN.

Page 362

458 A.2d 362

189 Conn. 671

Michael DeMILO et al. v. CITY OF WEST HAVEN.

Supreme Court of Connecticut.

Argued Dec. 10, 1982.

Decided April 5, 1983.

Charles H. Fischer, Jr., West Haven, with whom were Brian T. Fischer, West Haven, and, on the brief, Robert Reilly, Madison, for appellant-cross appellee (defendant).

Benson A. Snaider, New Haven, for appellees-cross appellants (plaintiffs).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

In this appeal the defendant, the city of West Haven (city), is challenging the propriety of the trial court's order assessing treble damages against it pursuant to General Statutes § 52-566. ¹ By way of a cross appeal, the plaintiffs have raised a number of issues. They claim that the trial court, O'Sullivan, J., erred in failing to set aside the verdict as against the law and as inadequate; in disclosing to the jury that their verdict, if for the plaintiffs, would be trebled; and in directing a verdict for the defendant on the first two counts of its amended complaint. We hold that the trial court did err in assessing treble damages against the city under the particular circumstances of this case. In regard to the claims raised by the plaintiffs, we find none of the issues to be presented properly. Therefore, we do not reach the merits of their cross appeal.

The plaintiffs, five in number, are the owners of three parcels of property located in the city of West Haven, and one parcel located in the town of Orange. While the three parcels in West Haven are contiguous, access to the parcel in Orange is blocked by the Oyster River. In 1960, a bridge was built over the river by C.W. Blakeslee & Sons, Inc. to provide a means of access to the property in Orange. This bridge consisted only of two forty-eight inch culverts covered with fill. The installation of the bridge caused extensive flooding of the property located upstream from it. In the ensuing years, residents of the area whose property was flooded made a number of complaints to officials of the city of West Haven. In 1974, as a result of an investigation by the city into the flooding, it undertook to clean and align 600 feet of the Oyster River, which included that portion of the river which passed through the plaintiffs' property. As part of this project, the two culverts were removed, leaving the plaintiffs without any access to their property in Orange. No compensation was paid to the plaintiffs for the removal of this bridge, nor did the city of West Haven seek or receive permission to remove the bridge.

In the meantime, in May 1972, the city of West Haven commenced the construction of a sewage facility known as the Oyster River pumping station. The general contractor for the project was C.W. Blakeslee & Sons, Inc. The site for this facility was located on a portion of the plaintiffs' land in West Haven known as the "second piece." Prior to commencing this project, the city had not obtained the permission of the plaintiffs ² to build on their land, nor had it compensated the plaintiffs for the taking or use of their property.

In 1975, after discussions with the office of the city's corporation counsel, the plaintiffs deeded the "second piece" by warranty deed to the city. The city paid the plaintiffs $14,500 for the property. In addition, the plaintiffs, in their brief, claim that the attorney for the city orally promised that the city would replace the bridge that it had removed. The city did not follow through on this alleged promise. As a result, the plaintiffs filed the present action.

After a trial to the jury, the plaintiffs were awarded $7424. The trial court then trebled this amount pointing out that it was acting pursuant to General Statutes § 52-566, as set forth above, for a total judgment of $22,272. These appeals followed.

We first take up the city's claim that the trial court erred in trebling the amount of the verdict reached by the jury. In order to assess the city's claim, it is necessary to review the counts upon which the jury reached its decision. The plaintiffs' amended complaint contained eight counts. ³ The trial court submitted only two of these counts to the jury: counts five and six. Both of these counts concern the actions of the city in removing the plaintiffs' bridge. The fifth count, in pertinent part, provides: "7. During the period February 23, 1974 through May 24, 1974, the defendants, acting by its agents, servants or employees, wrongfully took and destroyed the said bridge. 8. The aforesaid act of the defendant City of West Haven constituted a deprivation and a taking of the plaintiffs' private property .... 9. The plaintiffs have not received just compensation for the taking of their property from the defendant." The sixth count provides in pertinent part: "8. The acts of the defendant City of West Haven, as aforesaid, constitute wanton conduct and a nuisance with regard to the plaintiffs, to the plaintiffs' great detriment and damage." By contrast, the seventh count, which did not go to the jury, provides in pertinent part: "7. During the period February 23, 1974 through May 24, 1974, the defendant, City of West Haven, acting by its agents, servants or employees, to wit: C.W. Blakeslee & Sons, Incorporated, then a Connecticut corporation with its place of business in New Haven, Connecticut, willfully removed and destroyed the aforesaid bridge and its approaches. 8. The defendant is a 'person' within the meaning of Sec. 52-566 of the Connecticut General Statutes. 9. The defendant is liable to the plaintiffs pursuant to Sec. 52-566 of the Connecticut General Statutes in that it willfully removed or destroyed the aforesaid bridge and its approaches and therefore is bound to pay the plaintiffs as the owners of said bridge or their successors and assigns treble damages under said statute." In their prayer for relief the plaintiffs requested, inter alia, treble damages pursuant to General Statutes § 52-566.

The city claims that because only the fifth and sixth counts were submitted to the jury, there was no proof that the jury's verdict was founded upon a violation of the statute. Where, as here, the jury returns a general verdict, the city claims that the court was not authorized in trebling the damages assessed by the jury.

In their briefs, both parties recognize that the circumstances under which a party can recover double or treble damages under a statute were set forth in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919). "We require that the complaint shall clearly state such facts as will bring the case within the statute. Broschart v. Tuttle, 59 Conn. 1, 8, 21 Atl. 925 [1890]. And we require that the claim for relief shall be specifically based upon the statutory remedy. Dunbar v. Jones, 87 Conn. 253, 257, 87 Atl. 787 [1913]. We also require the proof to indicate that the verdict was necessarily founded upon a violation of the statute authorizing the extraordinary damages. Broschart v. Tuttle, 59 Conn. 1, 8, 21 Atl. 925 [1890]; Dunbar v. Jones, 87 Conn. 253, 256, 87 Atl. 787 [1913]. And we have held that it must clearly appear that the jury found for the plaintiff under the statutory cause of action authorizing these extraordinary damages, and not for any other alleged cause of action. Dunbar v. Jones, 87 Conn. 253, 256, 87 Atl. 787 [1913]. Where the complaint contains two causes of action, one under the statute authorizing these extraordinary damages and one under the common law, and the verdict is a general one, we have held that the court may not treble the damages assessed by the jury. Dunbar v. Jones, supra." Tillinghast v. Leppert, supra, 93 Conn. 249-50, 105 A. 615. See also George Rose Sodding & Grading Co. v. Omaha, 190 Neb. 12, 13-14, 205 N.W.2d 655 (1973); 25A C.J.S., Damages § 195. The city claims that the verdict reached by the jury was a general verdict and, as such, provides an insufficient basis for the trebling of damages under the Tillinghast decision.

The plaintiffs agree in their brief that the jury returned a general verdict but claim that Tillinghast provides an exception to the rule that statutory damages cannot be awarded where there is a general verdict. They cite the following portion of that opinion as support for their position. "It is possible that the record may show clearly, notwithstanding the general verdict, that the jury found the damages under the statute allowing the trebling or doubling of the damages, and not for any other alleged cause of action, but where this does not so appear the rule adopted must govern." Tillinghast v. Leppert, supra, 93 Conn. 250, 105 A. 615. The plaintiffs, arguing that they come within this exception, claim that "the record shows clearly that the jury, if it found for the plaintiffs, could only have done so on the basis of the defendant's wilful destruction of the plaintiffs' bridge." ⁴

We cannot agree with the plaintiffs' contention that, notwithstanding the general verdict, this case comes within the exception set out in Tillinghast. First of all, neither count five nor six specifically alleges that the city or its agents or employees acted "wilfully" as required by General Statutes § 52-566. While this court has not been called upon to define the meaning of the term "wilfully" as it appears in General Statutes § 52-566, we have done so in other contexts. In discussing what constituted a wilful battery, this court stated in Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975), that it was not sufficient " 'to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.' " Id., 333, 362 A.2d 798, quoting Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). In discussing the meaning of the term "wilful misconduct" as used in the Workmen's Compensation Act, §...