Ross v. Koenig

• Decision Date: 23 November 1942
• Citation: 28 A.2d 875,129 Conn. 403
• Court: Connecticut Supreme Court
• Parties: ROSS v. KOENIG.

28 A.2d 875

129 Conn. 403

ROSS

v. KOENIG.

Supreme Court of Errors of Connecticut.

Nov. 23, 1942.

Appeal from Superior Court, Fairfield County; Baldwin, Judge.

Action by Omer Ross against Nathan Koenig for personal injuries allegedly caused by the defendant's negligence, brought to the superior court in Fairfield County and tried to the jury before Baldwin, J. From a judgment in favor of the plaintiff, the defendant appealed, and the defendant having died while the appeal was pending, the superior court substituted Ray Koenig, administratrix of the defendant's estate, as party defendant.

Error and new trial ordered.

Before MALTBIE, C. J., and JENNINGS, ELLS, DICKENSON, and INGLIS, JJ.

James C. Shannon and Max Frauwirth, both of Bridgeport, for appellant.

David R. Lessler, of Bridgeport, for appellee.

ELLS, Judge.

There was a fire of undetermined origin on the third floor of the defendant's tenement house, as a result of which the plaintiff, an invitee, was trapped there and was severely burned. The defendant appealed from a verdict and judgment for the plaintiff, alleging errors in the charge.

The building was of wood and when originally purchased by the defendant was a two-family house with an attic arranged for and occupied as the residences of two families, living on the first and second floors. He altered the attic and made it into a tenement of six rooms, thus rearranging the building as a residence for three or more families. At the time of the fire the third floor was rented as five one-room apartments, each to separate individuals who made their homes, with whatever families they had, in the apartments. There was but one stairway leading from the third to the second floor, and there were no fire escapes on the outside of the third floor.

The jury was instructed that General Statutes, § 2613, was applicable and required that each story above the first be provided with more than one way of egress, by stairways on the inside or fire escapes on the outside. The defendant does not challenge this, but claims the court erred in further instructing the jury that General Statutes, § 2615, also applied and required fire escapes on the third floor directly accessible from each of the five rooms without passing through any public hall. This was error, for § 2615 applies only when such a building is more than three stories in height. However, the error, under the general verdict rule, is not cause for reversal. There were two counts, the first based on a claimed violation of § 2613 and of city ordinances, and the second on negligence separate and apart from such violations, namely, that the alterations were made in such manner and of such highly combustible materials as to constitute danger of fire and create an imminently and inherently dangerous condition, as a result of which the plaintiff was injured. The defendant does not complain of the court's charge as to the latter claims, or that there was insufficient evidence to support a recovery thereon. "If any of the counts are good, it will be presumed that the damages were assessed as to that count, and the verdict will be sustained." Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370, 372; Conn.App.Proc. § 34. If the defendant wished to protect himself against the effect of a general verdict, he should have submitted interrogatories. Lorenc v. Hartford Hospital, 127 Conn. 194, 197, 15 A.2d 313.

The second claim of error concerns a release of all claims resulting from the injuries received, executed by the plaintiff prior to trial, for a stated consideration of $75. The defendant pleaded it in bar of the action; the plaintiff replied that it was inoperative in that it was inconscionable, was obtained by fraud and coercion and was not the free and voluntary act of the plaintiff. The claims of proof show that the plaintiff offered evidence in support of his claim, while the defendant offered evidence to prove that the plaintiff voluntarily offered to accept $75 in release of all claims, that the release was read to him by a disinterested notary, who inquired whether he understood what he was doing, and that the plaintiff replied in the affirmative, whereupon his acknowledgment was taken. The plaintiff also wrote out in his own hand a withdrawal of action. Upon these and other claims of proof, not repeated here in full, the jury could have found that the plaintiff himself proposed the settlement, that he executed it voluntarily and that there was no fraud or coercion. Upon these conflicting claims the defendant requested the court to charge that, "where the consideration agreed upon for a release is something of value, the courts will generally in the absence of fraud, coercion, and undue influence, and if the parties are competent, not avoid the release on the ground of inadequacy of the consideration." While the request was not well phrased, it is clear that the court should have given adequate instruction upon this important claim. Although it was stated in the charge that if the jury found the settlement was made in the manner claimed by the defendant there could be no recovery, this did not adequately cover a situation, which, under the claims of proof, the jury might well have had under consideration. If the jury found that the settlement was voluntarily made and was free from fraud or duress, the adequacy of the $75 consideration was a matter for the plaintiff to...