PRESERVATION OF ERROR IN THE CHARGE

By William F. Gallagher

1. Purpose and Scope of Charge.

It is the function of the court to instruct the jury as to the legal principles governing the decision in the particular case, with a sufficient application of those principles to the facts and evidence to enable the jury to arrive at a sound decision. State v. Fetterer, 65 Conn. 287, 290 (1894); State v. Main, 69 Conn. 123, 127 (1897); Farguet v. DeSenti, 110 Conn. 367, 373 (1930).

A charge is not to be judged by the same standards as a statement of law "carefully elaborated and deliberately pronounced by a court of appeals sitting in banc." Sturdevant's Appeal from Probate, 71 Conn. 392, 398 (1899). The charge serves a very different purpose, which is to call the attention of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case. To make almost any rule of law intelligible to the ordinary juror, it must be expressed in a "few words." Id; Stedman v. O'Neil, 82 Conn. 199, 203 (1909).

It has been said that it is desirable to reduce the contested issue to the narrowest possible scope, and the aim should be "brevity and simplicity." The desideratum is a "succinct statement of the legal principles involved, with a sufficient reference to the claims of the parties so that the jury can appreciate their bearing on the facts." Maltbie, Connecticut Appellate Procedure, 2d Ed. § 74, p. 89.

2. Issues to be Submitted to Jury.

The issues to be submitted to the jury are primarily fixed by the pleadings and the evidence. Kilday v. Voltz, 117 Conn 170, 173 (1933); Beauton v. Connecticut L. & P. Co., 125 Conn. 76, 80 (1938); Faiman v. James D. Kauffman, Inc., 140 Conn. 395, 396 (1953). The trial court should submit no issue to the jury which is foreign to the facts in evidence or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. Wolfe v. Rehbein, 123 Conn. 110, 115 (1937).

The issue actually tried is often narrower than the scope of the pleadings. The trial court may restrict its charge to the claims actually made on the trial. Notarfrancesco v. Smith, 105 Conn. 49, 57 (1926); Ennis v. Clancy, 106 Conn. 511, 513 (1927); Cornwell v. Rosoff, 137 Conn. 458, 460 (1951). See, D'Arcy v. Shugrue, 5 Conn. App. 12, 22-23, cert. denied, 197 Conn. 817 (1985) ("We generally decide appeals based on the theories on which the cases were decided in the trial court.")

A charge must cover all the material issues proper for the consideration of the jury. Hubert v. New York, N. H. & H. R. Co., 90 Conn. 261, 273 (1916). The essential issues include such things as negligence; contributory negligence; and concurrent negligence. Where a complaint sought recovery on either of two grounds, it is essential to charge on both. It is the same with respect to several defenses. The court must state the rule of damages to be applied to the particular facts of the case. The cases are collected in § 75, Maltbie, supra, pp. 89-90. Maltbie states that even in the absence in a request to charge, a court is bound to instruct the jury as to an element necessarily involved in the case, or as to a matter essential to a full and fair consideration of the case. Maltbie, supra, § 76, p. 90.

3. Test of the Charge.

The test most generally stated for determining whether there is error in a charge is that it must be correct in law,adapted to the issues and sufficient for the guidance of the jury. Antz v. Coppolo, 137 Conn. 69, 72 (1950); Boland v. Vanderbilt, 140 Conn. 520, 522 (1953). If it meets this test, the charge will ordinarily be upheld, even though not in all respects exhaustive, perfect or technically accurate. Castaldo v. D'Eramo, 140 Conn. 88, 94 (1953). The Supreme Court has stated that the charge must contain the basic rules for guidance of the jury, and that it is sufficient if it fairly presents the case to the jury so that no injustice will result. State v. Jordan, 142 Conn. 375, 379 (1955); Borsoi v. Sparico, 141 Conn. 366, 371 (1954).

The charge is often required to be delivered upon meager opportunity for preparation, and under the strain of an intense legal battle. See, Curry v. Burns, 225 Conn. 782, 793-794 (1993). The Supreme Court examines the charge to see if it fairly presents the case to the jury in such a way that injustice was not done. It does not examine the charge with a legal microscope, to search for technical flaws, or inexact, inadvertent or contradictory statements. The duty of the court is performed when it gives instructions calculated to give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and suited to the guidance and determination of those issues. See Maltbie, § 76, p. 91.

For a recent case reversed because of inadequate instructions on proximate causation, see, Tesler v. Johnson, 23 Conn. App. 536, 540 (1990), cert. denied, 217 Conn. 806 (1991). The court held that although jury instructions need not be exhaustive, perfect or technically accurate, they must be "correct in law, adapted to the issues and sufficient for the guidance of the jury" and the charge on causation was inadequate.

4. Necessity of Application of Law to Facts.

In Elliot v. Sears, Roebuck & Co., 30 Conn. App. 664, 674 (1993), the court held that it is critically important that the trial court refer to the evidence in its instructions in order to assist the jury in applying the law correctly to the facts which they might find to be established. In State v. Wolff, 29 Conn. App. 524, 531 (1992), the court elaborated on the critical importance of reference to the evidence in jury instructions:

"[I]t is not the proper course for a judge to lay down the general principles applicable to a case and leave the jury to apply them, but it is his duty to inform the jury what the law is as applicable to the facts of the case." Laukaitis v. Klikna, 104 Conn. 355, 360 (1926); Jacques v. Carter, 2 Conn. App. 27, 34 (1984). Where the issues in a case are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary. State v. Wolff, supra at 532; Jacques v. Carter, supra at 33-34.

For a discussion of the fairness of the court's reference to the facts, see Luciani v. The Stop & Shop Companies, Inc., 15 Conn. App. 407, 415 (1988), cert. denied, 209 Conn. 809 (1988), where defendant claimed that the trial court presented the plaintiffs' claims to the jury as proven, but failed to present the defendant's claims in the same manner. The court held (15 Conn. App. at 415):

The court observed that the trial court at several points during the charge gave cautionary instructions, reminding the jury that it was its perception of the facts and not the court's which was to serve as the basis for its deliberations. The Appellate Court stated that "we acknowledge that while such corrective instructions will not cure an unfair charge, such cautionary instructions do tend to remove any doubt that the court properly discharged its duty of leaving the jury free to determine the facts and draw their own conclusions therefrom." 15 Conn. App. at 415.

In State v. Hernandez, 218 Conn. 458, 461-2 (1991), the court held that unfair comment on the evidence mandates reversal. The trial court extensively detailed the state's claims and its evidence and made little reference to the defendant's exculpatory evidence or his theory of defense. The court held that the case was presented to the jury in such a way that an injustice was done to the defendant.

5. Utilization of Statements of Counsel.

The court need not go into a detailed statement of the evidence as to every element of the case, nor call the jury's attention to every bit of evidence, as it is the jury's duty to remember it. It is largely a matter of discretion as to the degree of comment. Maltbie, supra, § 88, pp. 104-105.

Where counsel have fully argued a case a discussion of the details of the evidence by the court "may defeat the proper purpose of the charge." See Corrievau v. Associated Realty Corporation, 122 Conn. 253,256 (1936). Where the issues are simple and narrow, and the case fully argued by counsel, a succinct statement of the claims of the parties by the court is sufficient "without any reference to the evidence". Id.

In fact, statements of counsel in final argument can be used to cure an error in the charge. In Bombero v. Marchionne, 11 Conn. App. 485, 491-492 (1987), the plaintiff complained because the trial court had charged the jury equivocally concerning the life expectancy of the plaintiff, who was age 29. The plaintiff's life expectancy was 44.5 years, and the charge reasonably could be understood to mean that the plaintiff would live to age 44.5. Plaintiff had argued very clearly that he was entitled to compensation over the next 44 years. On appeal he claimed that the charge was unclear and could have led the jury to believe that the plaintiff would only live until age 44.5. The court held (11 Conn. App. at 492):

Accordingly, the court concluded that the charge, read in the light of counsel's argument, was not error as the jury could not have been misled. See also State v. Belton, 190 Conn. 496, 502 (1983); Tripp v. Anderson, 1 Conn. App. 433, 435-436 (1984).

This rule is also followed on appeal. In State v. McNellis, 15 Conn. App. 416, 441 (1988), defendant claimed error in court's denial of his motion for mistrial based on testimony as to the existence of a red stain on slacks seized at the time of arrest. The Appellate Court alluded to oral argument before it as follows (15 Conn. App. at 441):

The court went on to hold that based on the admission of defense counsel the defendant could "hardly claim surprise." See also, Temple v. Meyer, 208 Conn. 404, 409 (1988).

B. SHIELD FOR ATTACKS ON THE CHARGE

1. Charge to be Read as a Whole.

The cases are too numerous to cite for the proposition that in reviewing the correctness of a charge it must be read as a whole. What this rule says is that if there is an error in the charge the charge is read as a whole to ascertain whether the error "is so diluted by the admixture of correct doctrine, that as a whole it is legally innocuous." Maltbie, § 92, p. 110. The question is not whether every possible situation was covered, but whether the charge read as a whole was correct in law and adequate as a guide to the jury. Perfect accuracy and freedom from technical flaws is not required. A fair presentation of the case is required. Maltbie, § 92, pp. 109-110 states:

2. No Critical Dissection of the Charge.

In Foote v. Brown, 81 Conn. 218, 227 (1908) the court stated:

This proposition was followed in Wasfi v. Chadda, 218 Conn. 200, 209 (1991), yet the court approved a charge which it characterized alternately as "unfortunate," "confused," "not a model of clarity," "obviously jumbled," "incomprehensible," and "deficient."

In Wasfi several errors in the charge were raised. In connection with the court's determination that there was no error on the thrice-given charge on intervening cause, the court stated that the trial court told the jury to disregard the first two charges, and the third was described as "not a model of clarity," some of its sentences were "obviously jumbled" and "incomprehensible." The court referred to the overall charge and various parts of the decision as "unfortunate" (p. 208), "confused" (p. 209), "not a model of clarity" (p. 213), "obviously jumbled" (p. 214), "incomprehensible" (p. 214), and "deficient" (p. 218).

Grammatical or literary shortcomings are disregarded. Examples are (from Maltbie, § 93, p. 111-113):

3. Harmless Error Rule.

The harmless error rule provides that any error in a charge which could not have misled the jury is considered harmless and will not be the basis for a reversal. The standard in a civil case is whether the erroneous charge, or ruling, would likely effect the result. The standard is not whether there was sufficient other evidence on the same point, or on liability, or guilt. Swenson v. Sawoska, 215 Conn. 148, 153 (1990).

Swenson was a motor vehicle negligence case in which there was a verdict for defendant. The Appellate Court found that admission of police narrative was harmless error by determining that there was sufficient other evidence to support the jury's verdict. The Supreme Court held that this standard of harmless error is incorrect. The standard for harmless error in a civil case is whether the erroneous ruling, as with an erroneous charge, would likely affect the result. Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality. If erroneously admitted evidence is merely cumulative of other evidence presented, its admission does not constitute reversible error.

4. Errors Favorable to or Induced by Appellant.

It is elementary that an appellant can not take advantage of rulings favorable to or induced by him. This rule obviously applies to the charge. Accordingly a party cannot complain of a charge which is favorable, or at least more favorable than his own requests to charge. Hull v. Thoms, 82 Conn. 647, 651 (1910); Morgan v. Marchessault, 117 Conn. 607, 610 (1933). Similarly a charge which omits matters which would have increased the defendant's liability will not be the basis of error on the defendant's appeal. Generally, See Maltbie, §96, p. 116.

5. General Verdict Rule.

On June 15, 1993, the Supreme Court decided Curry v. Burns, 225 Conn. 782. The case involved a defective highway action against the State under § 13a-144 of the General Statutes. The defendant denied that he breached his statutory duty to maintain the highway and that the plaintiff had given notice as required by the statute. No interrogatories were submitted to the jury which returned a general verdict for the defendant. The Appellate Court held that it would not reach the plaintiff's claims of error directed to the notice issue as it concluded that any error would be harmless under the general verdict rule, as the defendant's verdict obviously meant that the commissioner had not breached his statutory duty to maintain the highway and accordingly there was no need to reach the notice issue. The Supreme Court granted certification on the general verdict issue, as in Hall v. Burns, 213 Conn. 446, 484-485 (1990), it had decided that in an action under 13a-144 a denial of both a highway defect and that the defect was the proximate cause of the plaintiff's injury were not distinct defenses for purposes of the general verdict rule. The court reversed the Appellate Court, overruling Finley v. Aetna Life & Casualty Co., 202 Conn. 190 (1987).

The Curry court, 225 Conn at 786, set out the general verdict rule as follows:

The Finley case involved a one count complaint for breach of an employment contract. It raised two claims, that a contract existed and that it had been breached. No interrogatories were submitted to the jury, which returned a general verdict for the defendant. On appeal, the court held that the general verdict rule precluded consideration of the plaintiff's claims regarding the charge, as they were directed to only one of the two separate and distinct issues.

The decision of Judge Borden in Curry v. Burns, concurred in by Justices Callahan, Berdon, and Katz, overruled Finley because it extended the general verdict rule "beyond appropriate bounds." It found the analysis in Finley to be flawed in that it did not correctly analyze prior precedent, and because "the authorities on which Finley relied for its broad and flexible formulation of the rule do not support that formulation." 225 Conn. at 799. Most important it overruled Finley because (225 Conn. at 799):

Judge Borden also explained the effect the general verdict rule has on the trial (225 Conn. at 793-794):

The court recognized that the application of the rule requires a substantial degree of certainty. Otherwise, the trial lawyer will be forced to err on the side of prudence by requesting interrogatories whenever there are "factually distinct issues that have been litigated, even though those issues stem solely from denials of different factual allegations of the complaint." 225 Conn. at 800.

The rule adopted provides for the application of the general verdict rule in five situations as follows (225 Conn. at 801):

An important part of the court's analysis is the non-application of the general verdict rule to specifications of negligence. Not even Finley had applied the general verdict rule to specifications of negligence. Several different specifications of negligent conduct in support of a single cause of action does not implicate the application of the general verdict rule because the "various grounds of negligence alleged are so often so interlocked as to make it difficult to consider them separately, and formulating interrogatories to obtain separate findings on the various claims would complicate the work of court, jury and counsel." 225 Conn. at 787.

Finally, the court noted, 225 Conn. at 789 n. 2, that the amicus curiae, the CTLA, suggested that "we abandon the general verdict rule altogether." The footnote then states:

The Chief Justice, in her dissent, concluded (225 Conn. at 803-804):

The amicus brief for the Connecticut Trial Lawyers Association was prepared by Neil Sutton of Cohen & Wolf. He had called attention in the brief to a substantial body of authority repudiating the general verdict rule. Federal Courts do not adhere to the rule. Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 78-79 (1907); Maryland v. Baldwin, 112 U.S. 490, 493 (1884). Indeed, the federal rule is just the opposite: there is no presumption that the jury found every issue in favor of the prevailing party. There is, on the contrary, a presumption that the jury were misled and an error on one count of a multiple count complaint will result in a new trial.

The rule as articulated in Curry v. Burns is still open to attack. See "General Verdicts in Multi-Claim Litigation," 21 Memphis State U.L. Rev. 705 (1991).

To repeat: the rule does not apply to specifications of negligence in a cause of action based on negligence. Where several specifications of negligent conduct in support of a single cause of action for negligence are submitted, and an error occurs on one, the fact that the remaining specifications are error-free does not implicate the application of the general verdict rule.

In Holbrook v. Casazza, 204 Conn. 336 (1987) (Shea, J.), the

court applied the general verdict rule in a defamation case. The defendants in Holbrook argued that the negligence rule as stated above should not be applied in a defamation action where several separate defamatory statements were set out in a single cause of action. The court held that the allegations were interrelated and interlocked and refused this approach.

However, what the court said it had never done in Curry and Finley did occur in the Appellate Court in Marsh v. Washburn, 11 Conn. App. 447, 458-459 (1987), involving specifications of contributory negligence set out in the defendant's special defense.

Defendant had pleaded both intoxication of the plaintiff and reckless driving in his special defense. The plaintiff on appeal complained that the trial court had misstated the evidence with respect to the alcohol issue. The Appellate Court held that even if it were to assume that the court erred by misstating the evidence in its charge on the impairment because of intoxication claim, there was evidence to sustain a defendant's verdict on the basis of the specification in the special defense that the plaintiff was guilty of reckless driving. The court then stated (11 Conn. App. at 458-459):

The application of the general verdict rule in this context

is astounding in light of the nearly contemporaneous statement in Finley that the Supreme Court had never done this.

In Hanlon v. Stettbacher, 13 Conn. App. 571 (1988) (DuPont, C.J.), the court applied the general verdict rule to preclude review of the plaintiff's claimed errors in jury instructions and evidentiary rulings pertaining to the defendant's negligence. The defendant by way of a special defense had alleged that the plaintiff was contributorily negligent. The court found that "[s]ince the jury is presumed, as a consequence of its general verdict, to have found for the defendant on her special defense of contributory negligence, the claimed error in the charge relating to the defendant's negligence need not be considered." 13 Conn. App. at 573. The court applied similar reasoning to claimed errors relevant to evidence admitted on the issue of negligence of the defendant and likewise declined to review such errors.

In Staudinger v. Barrett, 208 Conn. 94, 99 (1988), Justice Shea specifically states that the defendant's denial of negligence and plaintiff's contributory negligence are separate and discrete defenses. The court's language (208 Conn. at 100):

In Booker v. Stern, 19 Conn. App. 322 (1989), the court held that two causes of action in one count come within rule: so long as one cause within the count is error free, there is no reversible error.

C. ATTACKS ON THE CHARGE

1. Avoiding the General Verdict Rule.

Although it is desirable on appeal to have laid the foundation to avoid the general verdict rule, trial counsel frequently does not want to take the risk of focusing the jury's attention on an issue or issues that he or she considers not conducive to a favorable result. Interrogatories or separate verdicts frequently do not seem to favor the plaintiff, mainly because the plaintiff has the burden of proof. But they are at times equally unfavorable to the defense. Tactical and strategic considerations dictate whether interrogatories are to be submitted.

Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121 (1979) is an excellent example of the plaintiff's desire not to submit interrogatories, and his claim that the court committed harmful error in doing so. Of course, the interrogatories had been submitted by the defendant, and submitted to the jury by the court in only slightly different form. The action had been initiated against Reno Paint & Wallpaper Company and the O'Brien Paint Corporation. The case was settled as to Reno and submitted to the jury on theories of strict liability in tort, breach of warranty and negligence against O'Brien. The products liability statute was not applicable to the plaintiff's cause of action. Extensive expert testimony in the fields of medicine, chemistry and biology had been offered.

Defendant's interrogatories were submitted, argument made, with the court reserving decision. The court did not indicate its decision, and counsel did not ask, prior to final argument. After argument plaintiff learned that the interrogatories were to be submitted, and complained in several respects, basically claiming that the interrogatories presented by the court amounted to an attempt to channel the thought process of the jurors. The court, although holding that it would have been preferable for the court to have provided counsel with copies of the interrogatories prior to oral argument, found no error in its failure to do so.

(b) Separate verdicts.

Assuming that a decision has been made to avoid as far as possible the effects of the general verdict rule, there are a variety of ways to approach the problem. First, verdicts can be prepared on separate counts if that is implicated on the facts. For example, if the plaintiff has asserted a cause of action on several different theories and divided each theory into a separate count, separate verdicts for each plaintiff can be prepared on each count. Indeed, this is the reason why the practice has developed of dividing counts by theories of causes of action and by plaintiffs. If there are three plaintiffs, A, B, & C, each of whom have a tort and contract theory of liability, a total of six verdicts can be prepared from the plaintiffs viewpoint, a verdict for A on the first count alleging tort, a verdict for A on the second count alleging contract, and similarly for B and C. Defendant verdicts also would have to be prepared for each plaintiff verdict that is submitted. If a separate verdict is prepared for each plaintiff on each count, care must be taken on the damage issue to avoid duplicative awards, or confusion about duplication.

The authority for submitting separate verdicts is Curry v. Burns, supra, 224 Conn. at 786. See also Zimon v. Whitley, 110 Conn. 108, 113-115 (1929).

The submission of one verdict form for two cases consolidated for trial is error. In Suburban Sanitation Service, Inc. v. Millstein, 19 Conn. App. 283 (1989), an action for breach of contract and an action for negligent repair were consolidated. Jury were given one verdict form containing the names and docket numbers of both cases. The jury returned a verdict for $13,390.07 for Suburban and zero for Millstein.

The court held that there must be separate verdict forms for each case, bearing only one case name and docket number. The jury must be instructed to return two verdict forms, one for each case. A judgment must be rendered on each case individually based on the verdict in each case. Although error in the form of the verdict was not raised in the trial court, the appellate court reviewed the claim because of its importance and because this issue may recur on retrial.

(c) Interrogatories.

The same authority (Curry, supra, and Zimon, supra) holds that a party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.

Section 312 of the Practice Book provides as follows:

In Burns v. Koellmer, 11 Conn. App. 375, 389 (1987) the court stated that in order to save himself from the general verdict rule, a party is entitled to submit interrogatories in order to establish the legal basis of the verdict. The court stated that although the submission of interrogatories is ordinarily discretionary with the trial court, where the rule applies, such as where there are two causes of action in a single count, a party obtains the right to have properly drawn interrogatories submitted to the jury.

Other cases holding that a party is entitled to interrogatories where the rule is applicable are Sheeler v. Waterbury, 138 Conn. 111, 114-115 (1951); Holbrook v. Casazza, 204 Conn. 336, 346, n. 3 (1987).

See also Booker v. Stern, 19 Conn. App. 322 (1989); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 708-709, cert. denied, 220 Conn. 933 (1991).

In Decker v. Roberts, 125 Conn. 150, 157 (1939), the court held that it was error not to submit written interrogatories concerning wanton misconduct, negligence and contributory negligence.

In Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125 (1979) the court held:

The leading Connecticut case on the submission of interrogatories to the jury is Freedman v. New York, N.H. & H. R. Co., 81 Conn. 601, 614 (1909), where the court stated as to the form of interrogatories:

The interrogatories that the court submitted in Gaulton v. Reno Paint & Wallpaper Co., which were held appropriate on the facts of that case, are as follows (177 Conn. at 123-124):

--------

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Forms can be found in Connecticut Practice Book Annotated, Volume 6, "Connecticut Trial Practice," FitzGerald and Yules, p. 293 ff (hereinafter FitzGerald and Yules).

FitzGerald and Yules set out a general verdict form, "special" verdict forms, interrogatories in a variety of types of cases, one of which appears to be clearly improper, in that it seeks the submission of interrogatories on specifications of negligence (p. 296, Section 10.11).

While the number of and form of interrogatories is within the trial court's discretion, Canfield v. Rubber Co. v. Leary & Co., 99 Conn. 40, 54 (1923), interrogatories should be as few as possible, and several interrogatories concerning the same general cause are improper. Callahan v. Jursek, 100 Conn. 490, 494 (1924). Interrogatories should not pertain to subordinate facts, Pierce v. Albanese, 144 Conn. 241, 261 (1957), appeal dismissed 355 U.S. 15 (1957). Also, interrogatories generally should be drafted so that they will be conclusive of some issue whichever way they are answered. Canfield Rubber Co. v. Leary & Co., supra at 54 (1923). The rule says that the interrogatories should "explain or limit" the verdict. Interrogatories should not be used to guide the jury in a preordained direction. See West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 315-316 (1988).

(iv) Time for filing.

Gaulton v. Reno Paint & Wallpaper Co., supra, 177 Conn. at 129 holds that the filing of interrogatories before argument is essential to ensure that the court has an opportunity to review them and to give opposing counsel an opportunity to object and argue objections to the court. See also, Pedersen v. Vahidy, 209 Conn. 510, 515 (1989), which also holds that interrogatories are timely if requested when the requests to charge are filed.

A request for interrogatories should be made to the court before argument and opposing counsel should have the opportunity to comment on them. Falk v. Schuster, 171 Conn. 5, 8-9 (1976). As noted, the court's failure to have its own interrogatories typed by the time oral argument was delivered was excused in Gaulton v. Reno Paint & Wallpaper Co., supra. Counsel cannot merely place a piece of paper containing the interrogatories on the bench during opening argument and rely on the court to submit the interrogatories. Keeler v. General Products, 137 Conn. 247, 252 (1950).

(v) Procedure.

The rule spells out the basic procedure. Interrogatories should be in writing and the answers should be read with and filed as part of the verdict. The court should not address oral interrogatories to the jury after the verdict has been rendered. Reilly v. O'Connell, 97 Conn. 182, 188-189 (1922).

(vi) Contradictory answers to interrogatories.

If the interrogatory answers contradict the verdict, the jury should be returned for reconsideration under Section 311 of the Practice Book. If this is not done, or the jury persists in its answer, it may be possible for the court to enter judgment in accordance with the answers to interrogatories. See, Gesualdi v. Connecticut Co., 131 Conn. 622 (1945); Belchak v. New York, N.H. & H. R. Co., 119 Conn. 630 (1935).

In O'Brien v. Connecticut Company, 97 Conn. 419 (1922) the court held that the verdict was inconsistent and irreconcilable with the facts found by interrogatories and could not stand. The interrogatories submitted were (97 Conn. at 421):

________

________

The jury answered all of the interrogatories in the affirmative, but rendered a verdict for the plaintiff, which was in disregard of the explicit instructions of the court. The court held that because all of the interrogatories were answered in favor of the defendant, but a verdict was nevertheless rendered for the plaintiff to recover damages, that verdict could not stand.

In Gaulton v. Reno Paint & Wallpaper Co., supra, 177 Conn. at 129, the court noted that when the parties cannot agree, the court itself may prepare and submit such interrogatories as it determines to be appropriate, citing Barber v. Baldwin, 135 Conn. 558 (1949). It is clear that where the party is entitled to submission of interrogatories but cannot agree with his or her opponent as to the form, the court is under an obligation to prepare and submit the appropriate interrogatories.

(viii) Need for exception if dissatisfied with

interrogatories submitted.

In Holbrook v. Casazza, 204 Conn. 336, 346 n. 3 the court makes clear that failure to take exception to the manner in which the interrogatories are submitted is a relevant consideration, and may be determinative in a particular case. The language of the court is as follows:

2. Preservation of Error in the Charge.

Section 315 of the Practice Book reads as follows:

The rule states the requirement in the disjunctive. There must be either a written request to charge which is not given, or an exception to a portion of the charge as given. If a written request is made and not given by the court, an exception is unnecessary to preserve the issue for appeal. However, the converse is not necessarily true. If there is no request, an exception may be insufficient if the subject implicates a special feature of the case, or comes within §316 of the Practice Book.

However, even if a proper request is made it is not always reversible error not to give the charge. For example, where a witness' testimony may involve considerations not true of witnesses in general, the court may point these out to the jury. The court may instruct the jury that as a young child the minor plaintiff would be more amenable to influence over her by an older person. Wilhelm v. Czuczka, 19 Conn. App. 36, 38-39 (1989). However, it is not mandated that a court give this "special child witness credibility instruction" whenever it is requested by a defendant. State v. Hayes, 20 Conn. App. 737, 748-749 (1990), cert. denied, 215 Conn. 802 (1990).

But see, State v. Eichstedt, 20 Conn. App. 395 (1989), cert. denied, 214 Conn. 806 (1990), which holds that a request to charge, relevant to the issues and correctly stating the law, must be honored. The Appellate Court noted that a request to charge need not be given in its exact language if given in substance, and noted that there is no error if the instruction given, examined as a whole, fairly and adequately presents the case to the jury. Notwithstanding this, the court specifically stated, citing State v. Casey, 201 Conn. 174, 178 (1986) that "[a] request to charge, relevant to the issues and correctly stating the law, must be honored."

(i) Section 316 of the Practice Book.

Section 316 of the Practice Book provides:

Section 315 deals with the necessity for filing requests to charge or for taking exceptions at the conclusion of the charge in order to preserve error for appeal. Both these sections, Section 315 and Section 316, are the same as Sections 249 and 250 of the 1963 Practice Book and the first two paragraphs of Section 153 of the 1951 Practice Book. What are now Sections 315 and 316 of the Practice Book were first added to the rules in 1942. They became Section 156A of the 1934 Practice Book. See Syms v. Harmon, 134 Conn. 653, 656 (1948).

The Syms case held that the requirement of written requests under this rule is mandatory, and refused to review a claim of the applicability of the last clear chance doctrine because there had been no written request to charge filed. Similarly, if a party intends to rely upon a specific statute, that party must submit a written request to charge citing the statute and its application to the case. Mancaniello v. Guile, 154 Conn. 381, 385 (1966); Lowell v. Daly, 148 Conn. 266, 269-271 (1961). The failure of the court to charge on the statute after receiving a written request to charge concerning an applicable statute is reversible error. Worden v. Francis, 148 Conn. 459, 463-464 (1961).

Prior to the adoption of what is now Sections 315 and 316 of the Practice Book in 1942, there was some inadequacy in the rule with respect to the manner in which claimed errors in the charge to the jury were required to be raised. This is reflected in the decision of Judge Fitzgerald in Bycszyfski v. McCarthy Freight System, Inc., 9 Conn. Sup. 446, 453-454 (1941). As a result of the adoption of these rules certain of the cases dealing with error in the charge prior to 1942 are not in point.

(ii) Special features of the case.

Maltbie, Section 106, p. 128, referring to Section 153 of the 1951 Practice Book, states that in addition to the provision requiring written requests on certain issues (now Section 316) there is also a rule developed under the cases that for specific instructions on some special feature of a case there must be a written request to charge filed.

The following cases support this rule, holding in effect that where the charge is otherwise adequate, had the complaining party desired more particular instructions on the issue involved he should have requested them:

Maltbie goes on to state (Section 106):

The cases Justice Maltbie referred to are Lane v. Ludman, 131 Conn. 112, 117, 38 A.2d 178 (1944); State v. McCarthy, 133 Conn. 171, 178, 49 A.2d 594 (1946); and Borsoi v. Sparico, 141 Conn. 336, 372, 106 A.2d 170 (1954).

In the Lane case, a child pedestrian was struck by a car; there was a defendant's verdict and the plaintiff appealed complaining that the charge respecting the duty of the operator of the automobile to warn was inadequate. The court stated (131 Conn. at 117):

In the State v. McCarthy case, three men were charged with killing a guard in an attempt to escape from state's prison. One confessed and the confession was offered in evidence in the trial of the three for the crime. The two defendants who did not confess claimed that the court failed to charge respecting the lack of evidence to prove their participation in certain details of the plan as related in the confession. The court stated (133 Conn. at 178):

In the Borsoi case, the defendant claimed that the court erred in failing to give the jury any instructions suited to the particular case, chiefly because the plaintiff was the only witness on the issue of liability and the defendant did not offer any evidence at all. The defendant did not file any request to charge and the court stated (141 Conn. at 372):

(c) Error without a request (but with an exception).

There is one limitation upon the "special features" rule, however, as pointed out in Riley v. Connecticut Company, 129 Conn. 554 (1943), and Worden v. Francis, 153 Conn. 578 (1966). That limitation is that error will not be based on an omission to charge on a specific point as to which no request was made, provided the charge as a whole is sufficient to guide the jury in deciding the issues. State v. McCarthy, supra; Giddings v. Honan, 114 Conn. 473, 475 (1932); Mavrides v. Lyon, 123 Conn. 173, 176 (1937); Coy v. Milford, 126 Conn. 484, 488 (1940).

The court in the Riley case went on to state that when the omitted instructions are essential to a proper and complete consideration and decision of the case, failure to include them constitutes error, even though the court's attention was not called to the point by a written request to charge.

Maltbie (Section 106, p. 129) states that except where a request to charge is required under the rule or under the cases, it is the duty of the court even in the absence of a request to give the jury a proper and adequate charge and at least if proper exception is taken at its conclusion, a failure to do so may constitute reversible error.

In Foss v. Russo, 156 Conn. 230 (1968), the plaintiff claimed that the defendant, who was approaching in the opposite direction, turned his car to the left into the plaintiff's path when he was about 25 to 30 feet from the plaintiff's car, and that this caused the collision. The plaintiff filed no requests to charge, but took exception to the court's failure to charge on the applicability of the emergency doctrine, and on the effect of certain admissions made by the defendant. On appeal the court reversed, holding that the facts of the case warranted the charges excepted to, even in the absence of a request (156 Conn. at 232-233).

In Gravely v. Townsend, 163 Conn. 360, 364 (1972), the court held that even in the absence of a written request, on the facts of the case as developed on the trial "it was the duty of the court adequately to explain to the jury the nature and application of the doctrine of concurrent negligence as related to the circumstances of the case . . ." (emphasis added)

In Mei v. Alterman Transport Lines, Inc., 159 Conn. 307 (1970), the court found error, again in the failure of the court to charge on the emergency doctrine, even where the request was defectively drafted and correctly ignored. The court's language is instructive (159 Conn. at 310-311):

The following conclusions can reasonably be drawn from the above analysis:

1. There is a clear duty of the court to charge on material and important features of a case, even in the absence of a request.

2. The doctrine of sudden emergency, concurrent negligence, and the legal effect of admissions are material and important features of a case if the facts give rise to their application.

3. The court has a duty, and counsel have a right to expect, even in the absence of a request, a charge not only on "material and important" issues in a case, but also on those issues which are basic and fundamental to the case and which inhere in virtually all jury cases. For example, it should be unnecessary, on the above authorities, to request a charge on such fundamental rules of law as the doctrine of inferences; the credibility of witnesses; the credibility of experts; proximate causation; the definition of negligence; or on the basic rules for assessing damages.

Similarly, in a malpractice or products action, the basic features of such cases, such as the essentials for recovery, or on issues "material and important" to the specific case, involve a duty of the court to charge, are not "special features," and the failure to charge in the absence of a request but with timely exception should be sufficient to bring about a reversal.

4. As reflected in the extensive quote from Mei v. Alterman Transport Lines, supra, it is good practice to take specific exception to the court's failure to charge as requested. There is always the risk that on microscopic examination of the request some defect will be found.

(d) Error without a request and without an exception:

the plain error rule.

Smith v. Czescel, 12 Conn. App. 558, 562-563, cert. denied, 206 Conn. 803 (1987), has a good explanation of the rule:

(e) Requests to charge.

(i) Filing requirements.

Section 317 of the Practice Book reads as follows:

The reason that requests to charge should be filed before argument is to allow the court an ample opportunity to make a satisfactory examination of the requests. Lukovits v. Palmer, 126 Conn. 320, 322-23 (1940). The court can exercise its discretion in allowing counsel to file late requests. Farrington v. Cheponis, 84 Conn. 1 (1911). Although the requests should be filed before the start of final arguments, the trial court might be lenient if the evidence ends unexpectedly. Zupanick v. Fielding, 114 Conn. 345, 348-349 (1932).

(ii) Form and Contents of Request.

Section 318 of the Practice Book provides:

A request to charge should contain one principle of law and the request should be stated, followed by the citation of authority upon which the request is made. Each request must contain a single proposition of law. Holbrook v. Casazza, 204 Conn. 336, 353 (1987); Shelnitz v. Greenberg, 200 Conn. 58, 71-72 (1986). If the request contains more than one proposition, it may be refused. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 320 (1968). Attempts to state the same principle of law in several different ways is disapproved. Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 496 (1965) (seven requests on contributory negligence).

The request must be applied to the case on trial. Requests stating an abstract proposition of law which is not applied to the case is in violation of the rule. Shelnitz v. Greenberg, supra.

A request to charge on a statute should include the facts which make the statute applicable to the case. Batick v. Seymour, 186 Conn. 632, 643 (1982). If the request contains factual statements involving facts claimed by one party, it should also include the facts claimed by the opposing party on the same point. Pickens v. Miller, 119 Conn. 553, 555 (1935); and Kast v. Turley, 111 Conn. 253, 258 (1930).

The Practice Book Annotated, in the comment to Section 318, has a good summary of case law where a request has been refused (p. 506):

State v. Thorpe, 188 Conn. 645, 650-652 (1982), holds that the trial court should not inform the jury who requested a particular charge.

Filing more than 15 requests to charge means the trial court can ignore all of them. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527, n. 2 (1983); Hurder v. Pelkey, 8 Conn. App. 444, 446 (1986); Woodward v. Waterbury, 113 Conn. 457, 462 (1931); and Pietrycka v. Simolan, 98 Conn. 490, 500 (1923). The 15 requests rule can be waived. In any event, the number of requests should be limited because their purpose is to call the court's attention to particular parts of the case and not to frame the whole charge. Woodward v. Waterbury, 113 Conn. 457, 462 (1931). It is improper for counsel to attempt to prepare a complete charge for the trial judge, although frequently the trial judge solicits counsel to do so, especially in complex cases.

In Nisbet v. Olmeda, 15 Conn. App. 6, 13-14 (1988), in lieu of a request to charge, plaintiff filed a written set of "Proposed Jury Instructions" consisting of nineteen pages and "purporting" to be a complete charge covering all relevant instructions, general and specific, pertaining to the issues before the court, in a ready made format for delivery by the trial judge to the jury and in a text desired by the plaintiff. Needless to say, the Appellate Court condemned the practice and found no error in the trial court's refusal to honor the request.

State v. Boone, 15 Conn. App. 34, 38, cert. denied, 209 Conn. 811 (1988) holds that when an appellate court is reviewing a failure to charge as requested, it must adopt a version of the facts most favorable to party requesting the charge. Although a criminal case, the principle of law is the same in a civil case. Where the appellant is claiming that the trial court failed to charge as requested, the appellate court must adopt the version of facts most favorable to the appellant in assessing whether the charge should have been given.

(f) Exception to charge.

Section 315 provides that any exceptions to the charge must be made immediately after the charge. If there is no timely exception made, the appeal will be limited to the refusal to charge as requested. If there are no written requests, there probably is no basis for review of the charge. McMahon v. New York, N.H. & H. R. Co., 136 Conn. 372, 375 (1950). It is not permitted to sit silent at the close of the charge and gamble on the outcome. Gigliotti v. United Illuminating Co., 151 Conn. 114, 121 (1963). Indeed, it is not wise to wait until the jury announces that it has reached a verdict to take exception, as it will not be honored. Demichele v. Vermilye, 170 Conn. 184, 186 (1976). See also, Douglass v. 95 Pearl Street Corp., 157 Conn. 73, 84-85 (1968).

The court is required to afford counsel an opportunity to state exceptions to the charge in the absence of the jury. Bevins v. Brewer, 146 Conn. 10, 13 (1958). If the trial judge leaves the bench before counsel has had a chance to take his exception, a request should immediately be made of the court to return to the bench. Seaboard Freight Line, Inc. v. Castro Electric Co., 132 Conn. 572, 573 (1946).

The exception must state distinctly the matter objected to and the ground of the objection. The purpose of the exception is to alert the court in time to correct an error. If the exception does not fully apprise the court, the appeal will not be successful. Prystash v. Best Medium Pub. Co., 157 Conn. 507, 512 (1969).

If the court recharges the jury, it is necessary to take a new exception if the recharge is incorrect. Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 453-454 (1969).

The sufficiency of an exception to the charge was discussed in Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261 (1988) (Borden, J.). This case, which discusses the propriety of the court's charge to the jury on a condition precedent to a construction contract, is notable for its discussion in footnote 2 of the adequacy of counsel's exception to the charge. The court, distinguishing this case from Smith v. Czescel, 12 Conn. App. 558, 562 n. 2 (1987), found that counsel complied with the requirements of Practice Book Section 315 to "state distinctly the matter objected to and the ground of objection" where counsel persisted in stating his exception after being cut short by the trial court. 14 Conn. App. at 263 n.2 (pp. 263-264).

In State v. Coleman, 14 Conn. App. 657, 684 (1988), cert. denied, 208 Conn. 815 (1988), after noting that the defendant took no exception to the charge, the court stated:

In Oakes v. New England Dairies, Inc., 219 Conn. 1, 8 (1991), the court held that post trial motions are not the functional equivalent to an exception to the charge. The reason is that the motions are filed subsequent to the verdict, and do not provide the trial court with timely opportunity to remedy any error.

(g) Motion to set aside verdict.

Young v. Falk, 34 Conn. App. 852 (1994) holds that a timely motion to set aside verdict is essential in order to preserve the issue for appeal. The decision states (34 Conn. App. at 857):

The requirement of moving to set aside the verdict is based on the highly controversial Supreme Court decision in Pietrorazio v. Santopietro, 185 Conn. 510 (1981), mandating that a motion to set aside the verdict must be filed to preserve error in all civil actions for money damages, without regard to whether the issue has been raised and fully ventilated on the trial. If the motion to set aside is not timly filed the review is limited to plain error.

3. Miscellaneous.

(a) Mandatory supplemental instruction.

In State v. Jennings, 216 Conn. 647, 665 (1990) the jury submitted a request for a supplemental charge, or a written copy of the charge, on various subjects. The court stated (216 Conn. at 665-667):

(b) Submitting written instructions permissible.

In State v. Jennings, supra, 216 Conn. at 665 the trial court, having been requested by the jury for a copy of portions of the charge in writing, refused on the grounds that it did not have the authority to submit the charge in writing. The court held:

The omitted footnote, 216 Conn. at 665, n. 10, reads as follows:

(c) Disclosure of charge by court.

Section 318A of the Practice Book provides:

(d) Sending jury back.

Section 311 of the Practice Book provides:

This section is similar to Section 52-223 of the General Statutes. The verdict is usually first read, and then the court will ask the jury to reconsider. Gillette v. Schroeder, 133 Conn. 682, 685 (1947). Until the verdict is accepted in open court, it is no verdict at all. State v. Searles, 113 Conn. 247, 256 (1931); Shulman v. Stock, 89 Conn. 237, 241 (1915). See Gurland v. D'Adamo, 41 Conn. Sup. 407, 408 (1990) (Berdon, J)., holding that when the jury is returned to consider a verdict it is proper for the court to inform them of the reason why they are being returned. In addition, the case holds that since there is no verdict until it is accepted, jurors, when reconsidering, are free to change their minds.

The jury should be returned when the verdict is incomplete. Dorfman v. Martin & Crawford Motor Co., Inc., 105 Conn. 774 (1927). If the verdict is unclear or ambiguous, the jury should be returned. Delouise v. Clarke, 180 Conn. 137 (1980).

In Twohill v. Kane, 147 Conn. 191 (1960), the jury was asked to reconsider its verdict which the court characterized as too liberal. Upon reconsideration, the jury changed its mind and instead of awarding damages to the plaintiff, found in favor of the defendant. This was upheld by the Supreme Court.

Moreover, the trial court can send the jury back to reconsider even though the verdict as originally rendered is not so unreasonable that, if accepted, it would have to be set aside. Gillette v. Schroeder, 133 Conn. 682, 686 (1947); Ryan v. Scanlon, 117 Conn. 428 (1933). The court should make it clear that it is not requiring the jury to bring in a different verdict. Cruz v. Drezek, 175 Conn. 230, 240-243 (1978).

If the jury decides to stick to its original figure in spite of the judge's remark that the verdict is "extremely low," the verdict does not necessarily have to be set aside as inadequate. Mansfield v. New Haven, 174 Conn. 373 (1978).

A jury may be returned to consider damages only. Ferrigno v. Chase Brass & Cooper Co., 22 Conn. Sup. 33, 41 (1960). If a jury is returned because the verdict is extremely low, there is authority that the jury should reconsider both liability and damages. Prussick v. Menzies, 10 Conn. Sup. 99 (1941); see also, Malmberg v. Lopez, 208 Conn. 675 (1988); and Tezack v. Fishman & Sons, Inc., 173 Conn. 183, 187-188 (1977).

In Wochek v. Foley, 193 Conn. 582 (1984), the jury returned a high verdict. The defendant moved for reconsideration but the trial court denied it with the remark that the verdict was proper. When the court later set aside the verdict, the Supreme Court recited the trial court's initial remarks and reinstated the verdict.

In Gillette v. Schroeder, 133 Conn. 682, 685 (1947) the Supreme Court held that the trial court should not keep a rejected verdict secret, although it is not reversible error to do so. It appears that the general practice is to have the verdict read, state that it is not accepted, mark the verdict for identification, and proceed to instruct the jury to reconsider.

There appears to be a serious constitutional right to jury trial problem with the whole procedure. If a jury returns a verdict which is not excessive, but which the trial court nevertheless believes too liberal, or conversely, if the jury returns a low verdict which is not as a matter of law inadequate but which the trial court believes is too low, serious constitutional problems are posed by the practice of returning the jury for reconsideration. Moreover, if the jury is returned in this circumstance it is unclear whether, on appeal, the court can direct by remand the court to accept the earlier decision and render judgment thereon.