Krupa v. Farmington River Power Co.

• Decision Date: 30 December 1959
• Citation: Krupa v. Farmington River Power Co., 157 A.2d 914, 147 Conn. 153 (Conn. 1959)
• Court: Connecticut Supreme Court
• Parties: Frank KRUPA et al. v. FARMINGTON RIVER POWER COMPANY. Supreme Court of Errors of Connecticut

Page 914

157 A.2d 914

147 Conn. 153

Frank KRUPA et al. v. FARMINGTON RIVER POWER COMPANY.

Supreme Court of Errors of Connecticut.

Dec. 30, 1959.

Thaddeus Maliszewski, Hartford, for appellants (plaintiffs).

Ralph C. Dixon, Hartford, with whom was Morris Tyler, New Haven, for the appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MURPHY, Associate Justice.

According to the allegations of the complaint, the plaintiffs' tobacco farm in Windsor was extensively damaged during the disastrous floods of August, 1955, when a dike and flashboards which the defendant maintained in conjunction with a dam on the Farmington River gave way. The issues were closed, and the trial of the case was started before the court (Comley, J.) without a jury on September 19, 1957. With the permission of the court, the plaintiffs on September 20 filed an amendment to their complaint which added three specifications of negligence. The defendant filed an answer to the amendment on the same day, and the trial proceeded. Evidence was introduced which caused the trial judge to disqualify himself from continuing with the trial. A mistrial was declared, and the trial judge indicated that the case could be reassigned for trial on November 5, 1957, before another judge. To this all parties agreed. On September 25, the plaintiffs claimed the case for a jury trial. On October 5, the defendant filed a motion to strike from the jury docket. The court (Shapiro, J.) granted the motion on the theory that the plaintiffs had waived their right to a jury trial by continuing with the trial before Judge Comley after the complaint had been amended, and had agreed, after the mistrial, to the reassignment of the case for trial before another judge. Thereafter, the case was tried by Judge Cotter, who rendered judgment for the defendant. The plaintiffs have appealed. The first claim of error which we shall discuss concerns the granting of the motion to strike from the jury docket.

The case was returned to the Superior Court on the first Tuesday of September, 1956. Within thirty days after the return day, the plaintiffs filed two separate and distinct amendments to the complaint. This was their right. General Statutes, § 52-128; Practice Book, § 93. The defendant filed an answer and a special defense. The pleadings were closed by the plaintiffs' reply to the special defense. No claim for a jury trial was filed by either party prior to the start of the court trial before Judge Comley on these pleadings. Had the plaintiffs disclosed to the trial judge, when they requested and received permission to file the amendment of September 20, 1957, that they then intended to claim the case for the jury and thus delay the trial, the court would have been within its discretion in refusing the amendment. Smith v. City of New Haven, 144 Conn. 126, 132, 127 A.2d 829; Cook v. Lawlor, 139 Conn. 68, 72, 90 A.2d 164; see Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 80, 3 A.2d 315. After the amendment and the answer thereto were filed, the trial continued, and additional evidence was presented until the mistrial was declared. In Noren v. Wood, 72 Conn. 96, 98, 43 A. 649, we said that the right to a jury trial is a right which, like other rights, may be waived but that it is a right the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive. See Leahey v. Heasley, 127 Conn. 332, 336, 16 A.2d 609. Whether a party has waived his right to a jury trial presents a question of fact for the trial court. Stevens v. Mutual Protection Fire Ins. Co., 84 N.H. 275, 283, 149 A. 498, 69 A.L.R. 624. Upon the facts in this case, we are constrained to hold that the court did not commit reversible error in striking the case from the jury docket.

The assignments of error, other than those directed to the striking of the case from the jury docket, run the full gamut. They include two rulings on evidence; misconstruction by the court of three of the plaintiffs' claims of law; failure to reach the conclusions suggested by the plaintiffs in sixteen paragraphs of the draft finding; overruling the plaintiffs' claims of law, as set forth in six paragraphs of the finding, to the extent that the claims were correctly stated in those paragraphs; erroneous conclusions in five paragraphs of the finding; failure to adopt the conclusions set out in two other paragraphs of the draft finding; refusing to find facts in accordance with thirty-two paragraphs of the draft finding; finding the facts in eight paragraphs of the finding without evidence; and finding a fact contrary to the evidence. Such a wholesale attack upon the finding is rarely productive of beneficial results. It has been criticized repeatedly, but some counsel persist in the practice. Bent v. Torell, 139 Conn. 744, 747, 97 A.2d 270, and cases cited. The skilled hunter prefers the rifle to the blunderbuss.

The plaintiffs based their cause of action in negligence, breach of contract and nuisance. They alleged negligence in the construction and maintenance of the dikes adjacent to the dam and the flashboards on top of it; that the dam was originally constructed, and subsequent alterations made, without permission of the proper authorities and in violation of law; and that a dike constructed under a 1949 agreement with the plaintiffs was not in accordance with that agreement. The defendant's answer was in effect a general denial with a special defense that the plaintiffs' damages resulted from an act of God.

In 1925, the defendant constructed the Rainbow dam on the Farmington River in Windsor. At that time, the supervision of such...