author: Peters, C. J.

text:
    Berne B. Bleich v. Florence Crosby Ortiz et al.
    (11714)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued April 2
    decision released June 18, 1985

      David J. Elliott, with whom, on the brief, was James L. Ackerman, for the appellant (plaintiff).

      Thomas W. Mochnick, with whom, on the brief, was F. Timothy McNamara, for the appellees (defendants).
   Peters, C. J.

The issue in this appeal is the propriety of directing a verdict in a libel action when a defense of conditional privilege is raised. The plaintiff, Berne B. Bleich, brought suit against Florence Crosby Ortiz for libel. The trial court granted the defendant’s motion for a directed verdict and the plaintiff appealed. We find error.

Many of the facts underlying the appeal are undisputed. The plaintiff Bleich is an antique dealer. In 1978, he consigned an antique amber and ivory cabinet to Christie, Manson & Woods, Ltd., of London (Christie’s) for sale at auction. The cabinet was sold by Christie’s for $23,340. The defendant Ortiz also deals in antiques. After learning of the sale, she had her attorney send two letters to Christie’s in which she claimed ownership of the cabinet and asked Christie’s to withhold the proceeds of the sale from the plaintiff. The plaintiff, contending that he had been defamed by the letters, filed this lawsuit in December, 1979. In December, 1980, the defendant filed a separate action, Ortiz v. Bleich, claiming ownership of the cabinet and seeking damages for its conversion by the plaintiff.

The two suits were tried together to a jury. After the plaintiff had presented his case, relying heavily on his own testimony, the defendant moved for a directed verdict on the libel claim. She conceded for the purposes of the motion that the letters were defamatory, but contended that she had a conditional privilege to publish them and that the plaintiff had adduced no evidence that the privilege had been abused. The trial court agreed and granted the motion. The court denied the plaintiff’s motion to set aside the directed verdict. The jury subsequently decided the ownership suit in favor of the plaintiff and that decision was not appealed.

The plaintiff raises two issues on appeal. His primary contention is that the trial court erred in directing a verdict for the defendant on the libel claim. The plaintiff further argues that this court should direct judgment in his favor on that claim, leaving the amount of damages as the sole issue to be decided upon remand.

The rules controlling appellate review of a directed verdict are well settled. “Directed verdicts are not generally favored. A trial court’s decision to direct a verdiet can be upheld only when the jury could not reasonably and legally have reached any other conclusion. Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972); Console v. Nickou, 156 Conn. 268, 270, 240 A.2d 895 (1968); Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2 (1964). In reviewing the trial court’s decision directing a verdict [for the defendant] and denying a subsequent motion to set it aside, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Pinto v. Spigner, supra; Leary v. Johnson, 159 Conn. 101, 104, 267 A.2d 658 (1970).” Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); see Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).

The tests that govern a libel defense of conditional privilege are also clear. For the defense of conditional privilege to attach, a defendant must assert an objective interest sufficiently compelling to warrant protection of an otherwise defamatory communication. The privilege is defeated despite assertion of such an interest, however, if the defendant acts with an improper motive or if the scope or manner of publication exceeds what is reasonably necessary to further the interest. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 615-16, 116 A.2d 440 (1955); Terry v. Hubbell, 22 Conn. Sup. 248, 256, 167 A.2d 919 (1960); Wright & FitzGerald, Connecticut Law of Torts (2d Ed. 1968) §§ 157 and 158; see generally 3 Restatement (Second), Torts §§ 593 through 605A (1977). Whether a defamatory communication implicates an interest worthy of protection is a question of law for the trial court to determine, but whether the privilege is nevertheless defeated through its abuse is a question of fact to be decided by the jury. Hassett v. Carroll, 85 Conn. 23, 36, 81 A. 1013 (1911); Atwater v. Morning News Co., 67 Conn. 504, 513, 34 A. 865 (1896); Wright & FitzGerald, supra, § 155; 3 Restatement (Second), Torts § 619.

Considering the evidence in the light most favorable to the plaintiff, the jury could reasonably have found the following facts. The plaintiff and the defendant met in March, 1970. The plaintiff bought antiques from the defendant for resale and developed a good business and personal relationship with her. In the fall of 1970, the plaintiff purchased a damaged figurine from the defendant and repaired it. The defendant was impressed with the repair and showed the plaintiff the amber and ivory cabinet, which the defendant had dropped and badly damaged some time previously. Explaining that she had unpleasant memories of the accident, the defendant gave the cabinet to the plaintiff as a gift. The plaintiff effected partial repairs and tried to return it to the defendant, but'the defendant insisted that the cabinet belonged to the plaintiff. Several years later the defendant offered to buy the cabinet back, but she never asked for its return. The plaintiff openly displayed the cabinet in his home until he consigned it to Christie’s for sale.

The first letter sent by the defendant’s attorney to Christie’s stated that the cabinet “had recently become damaged, and Mr. Bleich, knowing the piece, offered to make arrangements to have the damage repaired. The piece was given over to Mr. Bleich for purposes of the repair approximately six months ago. Soon after Mr. Bleich left for Europe and was unable to be contacted. Mrs. Ortiz, when receiving your December 11th catalog of sold pieces, was understandably extremely upset to see her piece pictured as being sold. Mrs. Ortiz was, and may still be the owner of that piece, and Mr. Bleich, whom we understand consigned this piece to you for sale, had no title to convey.” Christie’s was asked to “withhold payment of any monies from the sale of this piece to Mr. Bleich” until the dispute could be resolved.

The second letter recounted the plaintiffs assertion that he had been given the cabinet as a gift and stated: “This is patently ridiculous, and it appears we will have difficulty at this end. Therefore we are filing suit alleging this illegal conversion of the property to his own benefit and will request the appropriate Court to order payment for the article to Mrs. Ortiz. In the meantime, therefore, it is extremely urgent that you do not release the money from the sale of this article to Mr. Bleich prior to either settling the issue with him, or of obtaining a Court Judgment as to who is entitled to the proceeds.” The letters were admitted as full exhibits at trial.

The trial court correctly decided that the defendant had established the necessary predicate for invocation of a conditional privilege. The court held, and the plaintiff does not deny, that the privilege may be asserted to protect an ownership interest in personal property. See Ely v. Mason, 97 Conn. 38, 42-44, 115 A. 479 (1921); Fain, Guman & Tobin, “The Law of Defamation in Connecticut,” 38 Conn. B.J. 420, 454-55 (1964). In this case, given the dispute about the circumstances surrounding the delivery of the cabinet from the defendant to the plaintiff, the defendant’s claim that she was the true owner of the cabinet is an assertion that merits protection. Because the letters were sent in furtherance of this claim, they are conditionally privileged.

The trial court erred, however, in holding that the plaintiff had produced no evidence that the privilege had been abused. The court found that there was no evidence from which the jury could reasonably conclude that the defendant had either acted with an improper motive or gone beyond the bounds of necessary publication. We disagree.

Even when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue. For purposes of our law of defamation, malice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive. See, e.g., Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950); Corsello v. Emerson Bros., Inc., 106 Conn. 127, 132, 137 A. 390 (1927). The jury, as the sole judge of credibility, would have been entitled to credit the plaintiffs testimony in its entirety. If the jury had chosen to do so, it could reasonably have decided that the defendant had indeed given the cabinet to the plaintiff as a gift and that the defendant’s attempt to obtain the sale proceeds was dishonestly undertaken out of an improper and unjustifiable desire for monetary gain. The jury could have relied on the erroneous assertions in the first letter, that the cabinet had only recently been damaged and that it was given to the plaintiff to repair six months before the sale, as additional evidence of the defendant’s bad faith in making her claim of ownership.

An assertion of conditional privilege also fails if the defamatory communication is addressed to a party whose knowledge of the matter is not reasonably believed to be necessary to protect the defendant’s interest or if the content of the publication is excessive. See France v. Gaston, 11 Conn. Sup. 1, 4 (1942); 3 Restatement (Second), Torts §§ 604 through 605A. Although the plaintiff made no claim that Christie’s was not a proper recipient of the letters, the jury could reasonably have found that the statements that the plaintiff’s claim of gift was patently ridiculous and that the defendant was filing a suit for illegal conversion were not necessary to the protection of the defendant’s lawful interest in the cabinet and exceeded the scope of the privilege.

We conclude that the plaintiff adduced sufficient evidence to enable the jury to find that the defendant had abused her conditional privilege. The trial court therefore erred in directing a verdict for the defendant.

The plaintiff, however, cannot prevail in his claim that judgment should now be directed in his favor. Although the jury could reasonably have found that the defendant abused her privilege, it was not bound to do so. The evidence of abuse was not unequivocal. Moreover, because a verdict had been directed in her favor at the close of the plaintiffs case, the defendant presented no evidence on the question. Nor does the plaintiffs victory in the title contest determine the outcome in this case. The title verdict was rendered on a distinct issue by a jury that was never instructed on the law of libel, and therefore it cannot serve as a surrogate for a libel verdict. In short, while the question of whether the defendant abused her conditional privilege should not have been taken from the jury at trial, that question is equally ill-suited to decision as a matter of law on appeal.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

Appendix

December 12, 1978

Mr. Paul Whitfield, Managing Director Christie’s

8 King Street

London, England

Dear Mr. Whitfield,

This letter will refer you to a certain piece known as North German Amber and Ivory Cabinet, Danzig, 1630-1640, from the Ole Olsen Collection, which was published in your catalog as having been sold on December 22, 1978 [sic].

This piece was purchased in Sweden in 1949 by Everett and Florence Crosby. This office represents Florence Ortiz, the former Florence Crosby, who was the sole heir to Mr. Crosby’s estate, and was the sole owner of the Olsen piece.

Mrs. Ortiz is a registered Antique Dealer in the United States. In her capacity as a dealer, she has in the past, had various dealings with a Mr. Berne Bleich, of Torrington, Connecticut to whom she has sold various pieces. The piece referred to above, had recently become damaged, and Mr. Bleich, knowing the piece, offered to make arrangements to have the damage repaired. The piece was given over to Mr. Bleich for purposes of the repair approximately six months ago. Soon after Mr. Bleich left for Europe and was unable to be contacted.

Mrs. Ortiz, when receiving your December 11th catalog of sold pieces, was understandably extremely upset to see her piece pictured as being sold. Mrs. Ortiz was, and may still be the owner of that piece, and Mr. Bleich, whom we understand consigned this piece to you for sale, had no title to convey.

We recognize that under English law, and because of the distance between us, it may be difficult to obtain the piece back. Her only recourse therefore is to strongly request that you withhold payment of any monies from the sale of this piece to Mr. Bleich. We are attempting to contact Mr. Bleich so as to confront him with our knowledge of the sale and, hopefully, we will be able to conclude this matter within the next thirty days.

We shall keep you informed. If you have any questions, please contact this office.

Yours truly,

John F. Besozzi, Jr.

JFB:bb

Christie’s

8 King Street

London, England

RE: Florence Ortiz vs. Berne Bleich

Gentlemen:

On December 12, 1978, we wrote to you referring to your sale of the North German Amber and Ivory Cabinet for the account of Berne Bleich. We requested that you withhold monies from this sale until we contacted Mr. Bleich as he had converted this piece to his own use and had sold it without authority.

We have, in the meantime, located Mr. Bleich and, when faced with this matter, he has maintained that his possession of the piece was as the result of a gift from Mrs. Ortiz to himself. This is patently ridiculous, and it appears we will have difficulty at this end. Therefore we are filing suit alleging this illegal conversion of the property to his own benefit and will request the appropriate Court to order payment for the article to Mrs. Ortiz. In the meantime, therefore, it is extremely urgent that you do not release the money from the sale of this article to Mr. Bleich prior to either settling the issue with him, or of obtaining a Court Judgment as to who is entitled to the proceeds.

We would be happy to enter a bill of interpleader in your behalf for your protection. This bill would simply acknowledge to the Court that you do hold money, the title to which is uncertain, and you will hold this money at the discretion of the Court and until you are directed whom to pay. Please let me hear of your views on this matter.

Yours truly,

John F. Besozzi, Jr.

JFB:bb

       Andelmo Ortiz is also a defendant in this case. Since he played little part in the underlying controversy, only the named defendant will be referred to in the opinion.

       The first letter is dated December 12,1978. The second letter is undated but was apparently sent sometime in January, 1979.

       The defendant now claims the additional defense of absolute privilege. Having expressly waived any such claim at trial, she cannot raise the issue on appeal. Practice Book § 3063.

       Because the jury’s decision in the ownership suit might have been influenced by the directed libel verdict, the trial court properly postponed the actual direction of the latter verdict until the jury had returned its verdict in Ortiz v. Bleich.

       The full text of the letters is set forth as an appendix to this opinion.


source: Caselaw Access Project

author: Dannehy, J. Callahan, J.,

license: Public Domain

text:
    State of Connecticut v. John A. Almeda, Jr.
    (12157)
    Healey, Shea, Dannehy, Callahan and Aspell, Js.
    Argued May 9
    decision released June 18, 1985

      C. Robert Satti, Sr., state’s attorney, with whom was Michael L. Regan, for the appellant (state).

      Chester W. Fairlie, special public defender, for the appellee (defendant).
   Dannehy, J.

This is the second appeal of this case to this court. The material facts are stated in State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983). On the last appeal we remanded the case for further articulation because the trial court’s findings on the issue of actual juror bias were incomplete. Id., 314. The scope of the remand required that the trial court make an explicit finding of the ultimate fact to be proved, actual bias on the part of a juror.

The trial court, Hendel, J., made findings of fact after remand similar to those found prior to the first appeal. On the basis of those facts, the trial court, in its further articulation, found actual bias upon the part of a juror. On remand, the trial court abandoned any reliance on Mares v. State, 83 N.M. 225, 490 P.2d 667 (1971), and applied the correct legal standard in finding actual bias on the part of a juror. State v. Almeda, supra, 312-13.

There is no error.

In this opinion Healey, Shea and Aspell, Js., concurred.

Callahan, J.,

dissenting. I respectfully dissent. I see nothing in the record which could reasonably result in a finding of actual bias on the part of the juror by the trial judge.

       On the first appeal, we decided that “[i]f a finding of actual bias appears on the record, there is no error.” State v. Almeda,, 189 Conn. 303, 314, 455 A.2d 1326 (1983). The effect of our decision today is to uphold the trial court’s order of a new trial.


author: Shea, J.

text:
    Howard J. Cashman et al. v. Frank Calvo et al.
    (12497)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 3
    decision released June 18, 1985

      James J. Scalise, with whom, on the brief, was Stefan J. Ludwikow, for the appellants (defendants).

      Nicholas E. DeNigris, for the appellees (plaintiffs).
   Shea, J.

This action was brought by the plaintiff home buyers for breach of the warranties provided by General Statutes §§ 47-117 and 47-118 concerning the construction of a home the plaintiffs purchased from the defendant builders. The case was tried to the court, Doyle, J., which found the issues for the plaintiffs and rendered judgment accordingly. The defendants appealed, claiming that the trial court erred in denying their motion to dismiss based on the absence of subject matter jurisdiction due to the alleged expiration of the applicable statute of limitations and in finding the evidence adequate to support recovery as to two of the claimed defects relied upon to prove the breach of warranty. We find no error.

The trial court found from undisputed evidence that the plaintiffs, Howard J. Cashman and Helene M. Cashman, had purchased a new one-family dwelling in Berlin from the defendants, Thomas R. Farr, Esther A. Farr, and Frank Calvo. The purchase price and a warranty deed were exchanged on July 12,1979. The plaintiffs notified the defendants of certain alleged defects in the residence on or about February 13,1980. The plaintiffs commenced this action on February 2, 1981, for breach of the express and implied warranties created by General Statutes §§ 47-117 and 47-118. The express warranty claims were dismissed for failure to make out a prima facie case after the plaintiffs had rested; Practice Book § 302; and only the implied warranty claims are involved in this appeal.

The claim of error in the denial of the motion to dismiss for lack of subject matter jurisdiction is based upon the defendants’ interpretation of § 47-118 (e), which limits the duration of the implied warranties created by the statute. The defendants argue that the language of § 47-118 (e) providing that the implied warranties relied upon by the plaintiffs shall “terminate,” in this case one year after delivery of the deed on July 12, 1979, is also a statute of limitations defining the period beyond which no action may be brought on the warranties. They maintain that, because § 47-118 creates liability unknown at common law, the limitation is jurisdictional; Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973); and, on the face of the complaint, has been exceeded by commencement of the suit on February 2, 1981, more than one year after the sale on July 12, 1979.

We agree with the trial court that the one year period allowed by § 47-118 (e) does not limit the period within which an action based on the implied warranties provided by the statute must be brought. The one year period from the delivery of the deed or the taking of possession is a limitation upon the period within which an action for breach of warranty may arise, not within which it must be commenced. While this distinction is made more explicit in the Maryland statute from which § 47-118 is derived; see 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4900 (remarks of Rep. Martin B. Burke); Md. Real Prop. Code Ann. § 10-204 (1985); we consider our statute plainly to dictate the same result. “It is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous.” Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561 (1971). Section 47-118 (e) provides only that “[t]he implied warranties created in this section shall terminate” upon the expiration of the one year period, not that no action may be brought upon them subsequent to that time. It would be inconsistent with the one year duration of the warranties provided by the statute to require that a suit for breach thereof be commenced within the same period. Even where the utmost diligence is exercised, some time must inevitably lapse between the accrual of a cause of action and its commencement by service of papers. We see no reason to read into the statute the limitation proposed by the defendants.

In order to bolster their argument that the time limit in § 47-118 must be a restriction upon the time to bring an action for breach of the warranties created by the statute, the defendants point out that there is no other statute of limitations expressly made applicable to such an action. The trial court resolved this problem by opining that the three year limitation contained in General Statutes § 47-121 was applicable, but also noted that, if § 47-121 were inapplicable, the six year limitation of § 52-576 relating to implied contracts would control. See Cacace v. Morcaldi, 37 Conn. Sup. 735, 741, 435 A.2d 1035 (1981). In either event, this action, brought less than two years after it arose, would not be time-barred. Like the trial court, we perceive no reason to render our advice as to which of these limitations is appropriate or whether that limitation should be characterized as jurisdictional in a case where the resolution of those issues is unnecessary. See Zoning Commission v. Tarasevich, 165 Conn. 86, 92, 328 A.2d 682 (1973); Anastasio v. Gulf Oil Corporation, 131 Conn. 708, 719, 42 A.2d 149 (1945). The trial court did not err in denying the defendants’ motion to dismiss.

The defendants’ remaining claims relate to the adequacy of the evidence establishing breaches of their implied warranties that the front door and the exterior siding of the house were free from faulty materials and constructed in a workmanlike manner. General Statutes § 47-118 (a) (1) and (3). It is familiar law that “[i]t was for the trial court to weigh the evidence and determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). If there is sufficient evidence in the record in support of the decision of the trial court such decision must be affirmed.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 237, 492 A.2d 159 (1985).

As to the adequacy of the evidence concerning the workmanship and composition of the exterior siding, the defendants do not question the trial court’s finding that shrinkage had occurred and gaps had appeared, necessitating replacement and restaining of substantial portions of the siding. The defendants do question whether the evidence was sufficient to support the trial court’s conclusion that this problem manifested itself within the one year period during which the implied warranties ran under § 47-118 and that faulty workmanship and use of inferior materials contributed to the deficiency.

Initially, we note that both Howard Cashman, a plaintiff buyer, and Thomas Farr, a defendant builder, testified that no problems with the siding were apparent at the time of the purchase. See General Statutes § 47-118 (b). Cashman also testified that he informed the defendants of the deterioration of the siding by letter in February, 1980, and that the defendants undertook partial repairs of the exterior siding near the end of March or the beginning of April, 1980, well within the one year warranty period. This testimony was corroborated by the plaintiffs’ expert witness, Robert Dietrich, who testified that the problems with the siding probably arose within the time frame suggested by Cashman, *&and by the defendant Farr, who admitted the notification and partial repairs as Cashman had testifed. Further, both Dietrich and Emil Carlson, the building inspector for the town of Berlin, testified that the amount of shrinkage and wear they observed in the siding during their respective inspections in November, 1980, and January, 1981, was not normal and probably had been caused by either inferior materials or the failure to install the siding properly and to stain it adequately and thus protect the wood from shrinking. The defendants attempted to counter the plaintiffs’ case with evidence that a certain amount of shrinking was inevitable and uncontrollable and that the materials used and techniques employed were generally acceptable in the trade. We cannot conclude that the evidence of breach was insufficient as a matter of law to support the trial court’s conclusion that the plaintiffs had proven their case. The trial court had the opportunity to assess the demeanor and credibility of the witnesses and to weigh carefully all of the evidence, as articulated in its memorandum of decision. See Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). We find no error in the conclusion that the defendants breached the implied warranties concerning the workmanship and materials used in installing the exterior siding of the plaintiffs’ house.

We reach a similar result with regard to the finding of breach as to the front door. As with the siding, both Cashman and Farr testified that the door appeared to be free of defects when the plaintiffs took possession. Cashman testified that the problem of the door splitting and warping started during the plaintiffs’ first winter in the house and that the defendants were informed and performed partial repairs within the one year period. Again Farr corroborated the evidence of notification and repair. Both Dietrich and Carlson testified that the deterioration of the door was abnormal and was probably caused by either inferior materials or failure properly to finish the wood. The defendants once more offered evidence that their actions and the material used were acceptable in the trade and that a certain amount of wear from exposure to the sun and weather was to be expected and did not indicate any breach on their part. We also find no error in the trial court’s conclusion from the evidence that a breach of the implied warranties that the door was free from faulty materials and constructed in a workmanlike manner had occurred.

“This court may reject a factual finding only if it is clearly erroneous, that is, if the finding is ‘unsupported by the record, incorrect, or otherwise mistaken.’ Kaplan v. Kaplan, supra, 392; Garrison v. Garrison, 190 Conn. 173, 176, 460 A.2d 945 (1983); see Practice Book § 3060D; Reynolds v. Soffer, 190 Conn. 184, 189, 459 A.2d 1027 (1983).” J. & J. Enterprises of Lenoir, Inc. v. Shaw, 190 Conn. 321, 322, 460 A.2d 1283 (1983). We perceive no such infirmities in the trial court’s rulings.

There is no error.

In this opinion the other judges concurred.

       In this context, we consider a cause of action under General Statutes § 47-118 to arise when the purchasers discover that a breach of the warranties entitling them to recompense has occurred. This interpretation is consistent with § 47-118 (b), which limits the warranties to only those defects not apparent to a reasonably diligent purchaser at the time of the contract of sale. If the defect becomes reasonably discoverable within the one year term provided by § 47-118 (e), the purchaser may claim a breach of the warranty, and the action on that breach, like any other action, need not be brought immediately, but only before it is barred by some statutory limitation. Because the issue has not been raised by the defendants, we need not focus on the necessity of notice to the defendants within a reasonable time after the breach is discovered; cf. General Statutes § 42a-2-607 (3) (a); though we note that the plaintiffs’ letter of February 13,1980, may very well have satisfied any such notice requirement.

       It is apparent that the legislature is quite capable of establishing a statutory bar to the commencement of an action by clear and unambiguous language when it so intends. See, e.g., General Statutes § 13a-149 (“No action . . . shall be brought except within . . . .”), § 47-121 (“No action shall be brought . . . but within . . . .’’),§ 52-555 (“No action shall be brought . . . but within . . . .”), and § 52-576 (“No action . . . shall be brought but within . . . .”). We do not by this observation intend to engrave in stone any thaumaturgic formula, conformity to which would be a necessary prerequisite to identification of a provision as a statute of limitations. Rather, we note only that the existence of a recognized and simple means by which to express this intent detracts from the possibility relied upon by the defendants that the language used in § 47-118, the plain meaning of which is entirely consistent with the statutory scheme in which it is found, in fact stands for something easily expressed in more common parlance.

       The trial court reasoned that the limitation in General Statutes § 47-121 was applicable to the warranty provisions of § 47-118 based on the observation that both statutes were derived from the same public act; Public Acts 1975, No. 75-637; and should therefore be read together. See Fava v. Arrigoni, 35 Conn. Sup. 177, 178-80, 402 A.2d 356 (1979).

       We are aware that Dietrich subsequently modified his testimony on cross-examination, when he stated that he could not give an opinion as to when the defects he observed in November, 1980, became apparent. Neither his direct nor his cross-examination testimony was unequivocal, however, and we consider the court to have been free to believe his initial testimony, especially given his continued insistence that the problems with the house were caused by faulty materials and improper installation. See Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982).


author: Per Curiam.

text:
    J. E. Van Mecklenburg v. Pan American World Airways, Inc.
    (12489)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued March 7
    decision released June 25, 1985

      Leslie Szilagyi, for the appellant (plaintiff).

      MarkR. Carta, with whom, on the brief, was Michael J. Jones, for the appellee (defendant).
   Per Curiam.

In December of 1977, the plaintiff,

Johannes Van Mecklenburg, instituted suit against the defendant, Pan American World Airways, Inc., to recover damages arising from an alleged breach of a charter contract. On December 3,1979, the trial court dismissed the case on its own motion pursuant to Practice Book § 251, for failure to prosecute with diligence. The plaintiff timely filed a motion to open judgment, which the trial court granted on June 23, 1980.

On June 11,1982, the trial court again dismissed the action pursuant to § 251. The plaintiff filed a motion to open the judgment of dismissal on October 8,1982, but failed to pay the accompanying filing fee. Although the trial court clerk who handled the motion stamped it as received by the court on October 8, upon realizing that the required fee had not been paid, the clerk crossed out the October 8 receipt date on the face of the motion and immediately returned it to the plaintiff. On October 15 the plaintiff refiled the motion and paid the fee. The trial court, Satter, J., opened the June 11,1982 judgment dismissing the case despite the defendant’s objection that the motion as refiled was untimely and therefore the court lacked jurisdiction.

In a memorandum of decision issued after a trial on the merits, the court, Gaffney, J., found the substantive issues for the defendant, and also found that, in any event, the plaintiff lacked standing to sue on the contract. The plaintiff sought review of the trial court’s decision in the Appellate Court. We transferred the case to this court pursuant to Practice Book § 3004A. We find error.

“Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment . . . rendered in the superior court may not be opened . . . unless a motion to open ... is filed within four months succeeding the date on which it was rendered or passed.” General Statutes § 52-212a; Practice Book § 326. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981); see Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983). The present action was dismissed by the trial court on June 11,1982. The plaintiff did not file a motion to open the judgment until October 15, 1982, more than four months later. Under the circumstances, the trial court was simply without jurisdiction to order that the proceedings be reopened. The order of dismissal should have been left undisturbed and the trial court therefore erred in hearing the case on the merits.

The plaintiff claims that, for purposes of the four month rule, October 8, and not October 15, should be considered the actual date on which the motion was filed. He argues that there was no need for the clerk’s office to return his motion and change the original filing date because General Statutes § 52-259c, which requires the payment of this filing fee, does not specifically provide that a motion not accompanied by the fee will be returned.

General Statutes § 52-259c states that “[tjhere shall be paid to the clerk of the superior court a fee of fifteen dollars upon the filing of any motion to open . . . any civil judgment rendered in superior court . . . .” It is clear from the language of this statute that payment of such fee is mandatory upon the filing of a motion to open. It therefore follows that an otherwise properly filed motion to open will not be accepted by the court unless accompanied by the filing fee. Since the plaintiff did not pay the required fee until October 15, the motion was not filed until that date, and as such, is untimely under the four month rule.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the plaintiff’s complaint.


author: Santaniello, J.

text:
    State of Connecticut v. George Cavros
    (11863)
    Peters, C. J., Dannehy, Santaniello, Brennan and S. Freedman, Js.

      Argued March 6
    decision released June 25, 1985

      Nicholas P. Cardwell, with whom, on the brief, was James C. Wing, Jr., for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Herbert Appleton, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, George Cavros, was tried before a jury of twelve on an indictment for murder. The jury returned a verdict of guilty of the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (1), and the defendant was sentenced to a term of not less than ten nor more than twenty years imprisonment. The defendant appeals from the judgment of conviction claiming error in the trial court’s denial of his motion for a mistrial, grounded on certain allegedly prejudicial remarks made by the court to the jury. We find no error.

The facts and circumstances surrounding the offense are not in dispute. The defendant and the victim were friends. On the evening of December 4,1980, they were drinking in a bar located on Union Place in Hartford with several of their social companions. A fight broke out during which the victim struck the defendant, breaking his glasses. The group then split up and the defendant left the bar unaccompanied.

Later that night, the defendant was driving along Union Place and saw the victim and three others. He stopped the car, got out and approached the group. Another fight took place and the victim again struck the defendant, resulting in the loss of a lens from the defendant’s glasses. Two men restrained the defendant as the victim struggled to reach him. The men forced the defendant head first back into his car, where the defendant grabbed a gun, turned and fired, killing the victim. At trial, the defendant did not deny that he had shot and killed the victim, but claimed that the shooting was justified because he had acted in self-defense. See General Statutes § 53a-19.

At trial, the jury was instructed on murder, self-defense, and the lesser included offenses of first and second degree manslaughter and criminally negligent homicide. The court specifically charged the jury to consider the proof with regard to each offense, beginning with the offense charged, murder, and, if that crime were not proved, then to move on to consider each of the lesser included offenses in descending order of seriousness. The court concluded its jury charge at 3:55 p.m. on October 26,1982, and the jury retired to commence its deliberations. Later that afternoon, the court received a note from the jury, with the time notation of 4:50 p.m., in which the jury requested a “copy of the Court’s definition” of murder, manslaughter in the first degree, manslaughter in the second degree, criminal negligence and self-defense, and the “[ejntire testimony” of six witnesses. The court summoned the jury at 5:14 p.m. and stated that it was just about to excuse the jury for the day when it received the above request. The court informed the jury that it had not “had full opportunity to discuss [the note] with counsel,” and that while “portions of the Court’s charge may be repeated and may be re-read to you . . . [u]nder our procedures the charge itself, or . . . the statutory basis for the charge is not before you in the jury room.” During a colloquy with the jury foreman, the court repeated its earlier instruction “that the charge explained all of these offenses in descending order. And your first function under the Court’s charge is to take up the charge of murder.” Indicating that the jury’s “request may be premature at this point,” the court suggested that the jury reconsider its needs and stated that “[i]f it is your wish to have the murder charge re-read, certainly the Court can do so.”

Similarly, with regard to the witnesses’ testimony specified in the note, the court informed the jury that while it would be possible for the court reporter to review her notes and read the desired testimony back to the jury, this procedure would “take some time.” The court suggested that “at this stage of deliberations . . . you attempt to use your own recollection of that testimony since the testimony should be fresh in your mind ... and attempt to refresh each other’s recollection.” Should this attempt at recollection be unavailing, the court indicated its willingness to “accede to [the jury’s] request.”

The court concluded its remarks by telling the jury that “unless you advise me otherwise tomorrow morning, I will re-instruct you with regard to the charge of murder.” The court then asked the jury “not to commence your deliberations before that but you can discuss amongst yourselves . . . just exactly what testimony it is that you wish and . . . whether this stands as your request or whether perhaps you want to make additions or perhaps deletions from those requests . . . tomorrow morning.” Shortly thereafter, at 5:25 p.m., the jury was excused for the night.

After the jury had departed, defense counsel raised an objection to the remarks the court had made in response to the jury’s request. He was troubled by the court’s assumption that “obviously [the jury] have not reached a point where they are discussing any of the lesser included offenses,” and objected to the court’s decision to recharge only as to the offense of murder when the jury had also requested reinstruction on the three lesser included offenses and self-defense. Since it was possible that the jury, in their first hour of deliberations, had already reached a verdict of not guilty of the charged offense, he argued, it “would be prejudicial” to the defendant to recharge the jury on murder only and send it back for further deliberation. The state’s attorney expressed his willingness to have the court reinstruct the jury on all the offenses in accordance with its request, and the court indicated that the defense’s point was “well taken” and that he was “inclined to grant that request.” The court concluded that it would “inquire again tomorrow. And if anyone, any member of the panel wants to hear the charge on the offenses certainly I will give it to them.”

The following morning, October 27,1982, the defense filed a written motion for a mistrial, alleging that the court’s response to the jury’s request the previous afternoon was “irreparably prejudicial to the defendant.” The court conceded that “a correcting instruction or a correcting comment is necessary under the circumstances,” but refused to declare a mistrial. The defendant took an exception.

When the jury entered the courtroom at 10:50 a.m., the court stated that it had received a second note from it, bearing the time notation of 9:40 a.m., which read as follows: “We are withdrawing our earlier request for testimony. Please recharge us on murder (including the definition of intent) and self defense.” After reading the note into the record, the court stated that it wanted “to make some comments which I was going to make before this note was given to me.” The court then made certain curative remarks regarding his response to the jury’s original request.

The court proceeded to question the jury foreman about the jury’s revised request. The court asked whether the second note was “prompted by the Court’s comments of yesterday afternoon directly or indirectly,” and the foreman responded in the affirmative. The court then instructed the jury “to ignore my comments with respect to limiting your request to the charge of murder. ... In other words, I’m asking you to disregard my comments as to where you were in your deliberations. And I’m indicating to you that your request which was made yesterday is going to be taken care of at this time.” In response to further inquiry by the court, the foreman indicated that the jury’s withdrawal of its earlier request for certain testimony was also prompted by the court’s remarks. Again, the court told the jury “to ignore my comments of yesterday with regard to the propriety of your requests for either the charge or the testimony” and stated that the specified testimony would be reread.

The court concluded its comments and questioning at 11:01 a.m., at which time the jury was excused from the courtroom for ten minutes. After a brief discussion between counsel and the court, during which the defendant’s attorney expressed his feeling “that what has just been said to the jury now has not corrected the prejudice that was created last night,” the jury was summoned at 11:11 a.m. The court then recharged the jury on all the offenses and self-defense, in accordance with its original request.

The jury’s deliberations continued over the next two days, during which it requested and reheard the partial or complete testimony of six witnesses, including that of the defendant. In addition, the jury requested and received reinstruction on intent, reasonable doubt and self-defense. On October 29, 1982, at approximately 4:44 p.m., the jury announced its verdict of guilty of first degree manslaughter under General Statutes § 53a-55 (a) (1).

The defendant’s sole claim on appeal is that the court erred in denying his motion for a mistrial. He argues that the court’s comments of October 26, 1982, in response to the jury’s initial request to be recharged on all the offenses, were irreparably prejudicial and entitle him to a new trial. We disagree. The well established rule in our state is that a mistrial should be granted only where it is apparent to the court that the defendant has been denied the opportunity for a fair trial due to some occurrence that took place during trial. State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985); State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Grayton, 163 Conn. 104, 112, 303 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972). Under the circumstances of this case, the comments of which the defendant complains did not deprive him of a fair trial.

The defendant claims that the court’s remarks were prejudicial in two respects. His primary concern is that “the jury could have understood the comments to be an intimation of the court’s belief that the [defendant was guilty of murder.” He further maintains that by focusing on the offense of murder, the court may have given the jury the impression that the crime was to be considered independently of self-defense, when in fact “the issue of whether the [defendant's actions were justified was an element of the State’s burden of proof.”

Although the defendant is certainly correct that the trial court in a criminal case must not direct or advise the jury to return a guilty verdict; General Statutes § 54-89; State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985); State v. Storlazzi, 191 Conn. 453, 465, 464 A.2d 829 (1983); we find no such improper advice or direction in the court’s remarks. The court’s comments were essentially based on its original jury instruction regarding the order in which the jury should properly consider the crime charged and its lesser included offenses. The defendant did not challenge this portion of the court’s charge at trial, nor does he contest its accuracy on appeal. While the court may have suggested that the jury should not yet be considering the lesser offenses, the fact that “murder” was included in the jury’s initial request for reinstruction belies any suggestion that it had already reached a verdict of not guilty as to that charge.

The court’s remarks were in response to a broad and extensive request for reinstruction and testimony that the jury submitted after less than one hour of deliberation. In a case that presented a total of five possible verdicts, the court was merely attempting to guide the jury as to how it should proceed in its deliberations and isolated the offense charged, murder, as the first issue for its consideration. The court’s impression that such guidance was necessary is supported by the jury foreman’s later assertion that “[a]t the time we made the request ... we were disorganized . . . .’’To the extent that the court’s remarks focused on murder and suggested that the jury should not have progressed beyond a certain point in its deliberations, the curative instruction given the following morning served to dispel any possible confusion generated by the court’s comments of the previous day. The court repeatedly told the jury to disregard its earlier comments and, absent a fair indication to the contrary, we presume that these instructions were followed. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). Moreover, the jury was ultimately recharged exactly as it had requested, and the defendant concedes that these supplemental instructions were correct. Since we consider the supplemental charge together with the allegedly erroneous original comment in determining prejudicial impact; State v. Topciu, 183 Conn. 1, 6, 438 A.2d 803 (1981); State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978); we conclude that the defendant was not harmed by the court’s remarks.

The defendant’s contention that the court’s offer to recharge only on murder may have misled the jury to believe that the offense should be considered separate and apart from the issue of self-defense is similarly without support in the record. The court’s original charge on self-defense, which was twice repeated upon the jury’s request and is not challenged by the defendant, correctly informed the jury that “the State has the burden of proving beyond a reasonable doubt that the elements of that defense as I have explained them to you are not present in this case and that the defense is not a valid one.” See General Statutes § 53a-12. Even before the court had given its curative instructions, the jury submitted a second note requesting reinstruction on “murder (including the definition of intent) and self defense.” Thus, the jury clearly understood that the offense and the justification were to be considered together. Under these circumstances, we conclude that the court’s comments were not misleading.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-19. USE of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The court’s comments were as follows: “I should mention, first of all, that generally speaking it is not for the Court or for counsel to second guess your requests. When the jury makes a request and it is a reasonable one, that request should be acceded to. And I did not want to leave you with the impression — I think I might have used the words to the effect that your request might be premature. I suggested to you you should be at some point in your deliberations. I might have left that impression with you. And I want to indicate it was not my intention to suggest to you that you should be at any particular point in your deliberations at any time. We, neither Court nor counsel, can speculate as to where you are in deliberations. We do not want to know what particular point you are in your deliberations. Those are matters which concern the process of deliberation. And they are not matters that either the Court or counsel have a right to speculate about or to inquire about.
      “So that you will recall we remained in session after you left yesterday. And the matter was discussed with counsel. And it was the feeling of counsel that your requests, your original requests should be acceded to. And I concur with counsels’ suggestion for the reason that I felt that my comment with regard to the propriety of that request may perhaps have misled you.”

       Later on October 27, 1982, at 12:06 p.m., the jury foreman, speaking on behalf of the entire panel, withdrew “our earlier request to have all the testimony read to us at this time.” Because of the foreman’s responses to the court’s questions that morning, the court expressed concern that “the withdrawal of your request may have been prompted by something the Court might have said or implied yesterday.” The foreman assured the court that “that is not the case. At the time we made the request we feel now that we were disorganized, and we are more organized now .... [W]e will want specific testimony re-read as we require it . . . .” After the jury was excused to continue its deliberations, counsel and the court agreed to reread testimony as the jury requested it, and this procedure was communicated to the jury.


author: Arthur H. Healey, J. Shea, J.,

text:
    Samuel R. Perille v. Raybestos-Manhattan-Europe, Inc., et al.
    (12163)
    Peters, C. J., Healey, Shea, Dannehy and F. Hennessy, Js.
    Argued March 13
    decision released June 25, 1985

      Daiga G. Osis, for the appellant (plaintiff).

      Morgan P. Ames, with whom, on the brief, were Denis M. King and Jo E. Friday, for the appellee (named defendant).
   Arthur H. Healey, J.

This appeal arises from an action brought by the plaintiff, Samuel R. Perille, against both his former employer, RaybestosManhattan-Europe, Inc. (Raybestos), and a former coworker, Joseph Tighe. Specifically, the plaintiff appeals from the trial court’s determination on Raybestos’ motion for summary judgment that the Connecticut Workers’ Compensation Act bars this action against his former employer. See General Statutes § 31-284 (a).

The plaintiff had been employed with Raybestos at its Stratford facility for a number of years prior to his voluntary resignation in September, 1980. In 1978, Tighe, also a Raybestos employee, was transferred into the same department in which the plaintiff worked. For whatever reasons, the plaintiff and Tighe did not peaceably coexist. According to the plaintiff, Tighe “over a long period of time did ridicule, molest, harass, torment, tease, threaten and ultimately assault [him].” Several on-the-job episodes occurred in which Tighe allegedly assaulted the plaintiff and had to be physically restrained by other Raybestos employees. These incidents were brought to the attention of their immediate supervisor. The plaintiff maintains that Raybestos took no corrective action with respect to either the plaintiff or Tighe, and the plaintiff finally resigned from Raybestos in 1980.

The plaintiff, in February, 1981, applied for workers’ compensation for injuries allegedly received by him during his employment at Raybestos. An informal hearing was held in May, 1981, on the plaintiff’s claim for compensation. In August, 1981, he instituted this legal action in a four count complaint against the defendants Raybestos and Tighe. Sounding in tort, the three counts directed against Raybestos claimed that the plaintiff sustained “severe mental and physical harm” as a result of Raybestos’ alleged breach of an implied condition of its employment contract, violation of General Statutes § 31-49, and “negligence and carelessness.” The fourth count, directed against his former coworker Tighe, alleged assault and battery.

Raybestos, by way of special defense, pleaded that the “alleged injuries arose out of and in the course of [the plaintiff’s] employment,” and that, in accordance with § 31-284 (a), workers’ compensation provided his exclusive remedy. Raybestos’ motion for summary judgment based on this special defense of exclusivity was granted on all three counts against it.

On appeal, the plaintiff claims that the trial court, in granting summary judgment for the defendant Raybestos, erred in that: (1) the Workers’ Compensation Act does not constitute an employee’s sole remedy “if the employer engages in serious and willful misconduct”; (2) “a knowing violation of an employer’s duty to provide his employees with a safe place to work permits a direct action against the employer” under General Statutes § 31-49; and (3) summary judgment was improper in this case because of the existence of “unresolved questions of fact.”

Under our Workers’ Compensation Act, “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . . ” General Statutes § 31-284 (a); Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985); Jett v. Dunlap, 179 Conn. 215, 216, 425 A.2d 1263 (1979). “In previous decisions under the [Workers’] Compensation Act we have consistently held that where a worker’s personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred.” (Citations omitted.) Jett v. Dunlap, supra, 217. An employee’s injury is compensable under the act “if it is an injury ‘arising out of and in the course of employment.’ ” Morin v. Lemieux, 179 Conn. 501, 504, 427 A.2d 397 (1980); see also General Statutes §§ 31-275 (8), (12), 31-294; Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Dennison v. Connecticut Good Humor, Inc., 130 Conn. 8, 10, 31 A.2d 332 (1943). As we have stated, “[a]n intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the [Workers’] Compensation Act. Willis v. Taylor & Fenn Co., 137 Conn. 626, 627-28, 79 A.2d 821 (1951); 82 Am. Jur. 2d, Workmen’s Compensation § 330.” Jett v. Dunlap, supra, 218.

We recognized in Jett that “[u]nless the defendant employer intentionally directed or authorized [the coworker] to strike the plaintiff, the employer has a right to view the incident as an injury arising out of and in the course of employment, another ‘industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.’ 2A Larson, Workmen’s Compensation (1976) § 68.21, p. 13-11.” Id., 218. We concluded, accordingly, that “[i]f the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort; if the assailant is only another employee who cannot be so identifed, then the strict liability remedies provided by the [Workers’] Compensation Act are exclusive and cannot be supplemented with common-law damages.” Id., 219.

In the present case, the assaults and other conduct alleged to form the basis for this action clearly were perpetrated by one co-worker against another and occurred during work hours on the employer’s premises. The plaintiff has made no allegation either that Tighe acted “as the alter ego” of Raybestos or that Raybestos had “directed or authorized” the assaults in question. Id. The plaintiff does allege that Raybestos “willfully and maliciously failed to provide the plaintiff with a reasonably safe place to work . . .’’despite his claim that “on numerous occasions [he] notified the defendant ... its agents, servants and/or employees, of the continuous conduct of . . . Tighe.” The plaintiff seems to argue that such nonfeasance on the employer’s part distinguishes the present case from Jett v. Dunlap; by “knowingly tolerating” Tighe’s alleged behavior towards him, Raybestos in effect “not only condoned it but actually encouraged it,” thereby itself engaging in wilful and serious misconduct and thus taking the case outside the Workers’ Compensation Act. We do not agree.

In Mingachos v. CBS, Inc., supra, we recently explicated the “wilful or serious misconduct” exception we had enunciated in Jett v. Dunlap, supra, to the exclusive remedy principle expressed in General Statutes § 31-284 (a). We explained that to be outside of the purview of § 31-284 (a), the employer must have engaged in intentional misconduct, as that has been defined through our case law; see, e.g., Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985); Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935); directed against its employee. Mingachos v. CBS, Inc., supra, 102-103. Anything short of “genuine intentional injury” sustained by the employee and caused by the employer is compensable under the Act. Id., 108. While the defendant employer in the present case may have been “negligent,” as this plaintiff alleged, in its failure to take corrective measures that would have served to eliminate the likelihood of the claimed encounters between the plaintiff and his co-worker, none of the plaintiff’s allegations, fairly read, indicated that Raybestos genuinely “intended” the occurrence of any of the plaintiff’s resulting injuries. Id., 101-102, 107-108. “Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person.” 2A Larson, Workmen’s Compensation Law (1976) § 68.21; see Jett v. Dunlap, supra, 219.

Additionally, in arguing against the exclusivity of the Workers’ Compensation Act, the plaintiff claims that under General Statutes § 31-49 he may maintain a direct action against Raybestos for “a knowing violation of an employer’s duty to provide his employees with a safe place to work.” Section 31-49 provides: “It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master.” The plaintiff contends that this provision “has not been changed by” the Workers’ Compensation Act and thus permits a direct action against the employer for a breach of its statutory duty even though the injury alleged may be compensable under the act. We do not agree.

Again, as we stated in Mingachos v. CBS, Inc., supra, although “our Workers’ Compensation Act [does not] bar tort actions against an employer that deliberately intended to injure its employee . . . ‘the common-law liability of the employer cannot, under the almost unanimous rule . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.’ (Footnotes omitted.) 2A Larson, supra, § 68.13.” (Emphasis added.) Id., 107-108. In Mingachos, however, we were not directly confronted with any claims based upon § 31-49. In addressing this claim, we should examine the historical underpinnings of § 31-49 as well as its evolution over the years. “The court, in construing a legislative act, considers its history, its language, the purpose it is designed to serve and the circumstances surrounding its enactment . . . . ” Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972); see also Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 492 A.2d 180 (1985). “The legislative objects must be taken into account. Norwalk v. Daniele, 143 Conn. 85, 87, 119 A.2d 732 [1955].” Bahre v. Hogbloom, supra, 554-55.

Our examination turns to the mid-nineteenth century when the industrial revolution was well underway. This court in Hayden v. Smithville Mfg. Co., 29 Conn. 548 (1861), adopted the English rule of law which then held that “an employee can not recover for an injury suffered in the course of his business from defective machinery, unless the employer knew or ought to have known the fact, and the employee did not know it or had not equal means of knowing it.” Id., 560. Although this common law duty required the employer to provide safe equipment for work and to give warnings of dangers of which the employee had not the “equal means” to be aware, the employee might nevertheless be denied any recovery for an employer’s breach of that duty under the doctrine of assumption of the risk. See generally Prosser, Torts (4th Ed. 1971) § 80. Soon thereafter, the fellow-servant doctrine was also adopted by this court in Burke v. Norwich & Worcester R. Co., 34 Conn. 474 (1867); see also Prosser, supra. In that case it was stated: “that a master is not liable to a servant for an injury to him occasioned by the misconduct or negligence of a fellow-servant, has been so often recognized both in this country and in England that it must now be considered as settled law.” Burke v. Norwich & Worcester R. Co., supra, 479, citing Farwell v. Boston & Worcester R. Co., 45 Mass. (4 Met) 49 (1842). We nevertheless questioned even then the “justness” of the “reasoning” underlying the fellow-servant rule. Id. This court further commented: “With respect to considerations of policy, it is by no means certain that the public interest would not be best subserved by holding the superior, with his higher intelligence, his surer means of information, and his power of selecting, directing, and discharging subordinates, to the strictest accountability for their misconduct in his service, whoever may be the sufferer from it.” Id., 480; see Grillo, “Fifty Years of Workmen’s Compensation— An Historical Review,” 38 Conn. B.J. 239 (1964). Subsequently, this court softened the impact of the fellow-servant rule when we held in Darrigan v. New York & New England R. Co., 52 Conn. 285, 307 (1885) that, regardless of the rule’s vitality and under the particular facts of that case, “[rjeason, justice and law require that the [employer] should be held responsible.” In Darrigan, this court observed that “the principles which we think should govern this case have been embodied in an act of Parliament [in 1880] and are now the law of England.” Id., 308. Near the turn of the century, this court again expressed its dissatisfaction with the fellow-servant rule, although we said that it “is too firmly established as law by a multitude of decisions to be now reversed or seriously modified by any exercise of the power vested in courts.” Nolan v. N.Y., N.H. & H. R. Co., 70 Conn. 159, 194, 39 A. 115 (1898). In noting that England, where the fellow-servant rule had originated, had in effect abolished it through the 1897 “Workmen’s Compensation Act”; see Epstein, “The Historial Origins and Economic Structure of Workers’ Compensation Law,” 16 Ga. L. Rev. 775, 797-800 (1982); this court stated in a substantial footnote: “But the evil is too deep seated to be remedied by judicial action; it needs radical treatment through wise legislation.” Nolan v. N.Y., N.H. & H. R. Co., supra, 195.

Regarding the employer’s common law: duty to its employees, this court stated in 1891: “The rule of duty of master to servant is well settled in this state. It is the master’s duty to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers. It is equally well settled that performance of these duties cannot be effected by the simple giving of an order, —by their execution being entrusted to another. The designation of an agent, however fit and competent that agent may be, for the execution of the master’s duties, does not fill out the sum of the master’s obligation, nor serve to relieve the master from further responsibility.” McElligott v. Randolph, 61 Conn. 157, 161-62, 22 A. 1094 (1891); see also Wilson v. Willimantic Linen Co., 50 Conn. 433 (1883). Subsequently and arguably in response to our evolving case law and in part to the court’s invitation in 1898 in Nolan v. N.Y, N.H. & H. R. Co., supra, the General Assembly in 1901 passed “An Act Concerning the Liability of Employers,” which legislatively adopted the employer’s duty as it had been articulated in McElligott v. Randolph, supra. Now codified as General Statutes § 31-49, that provision has remained intact and unchanged since its initial codification in 1902. See General Statutes (1902 Rev.) § 4702; (1918 Rev.) § 5320; (1930 Rev.) § 5211; (1949 Rev.) § 7367; (1958 Rev.) § 31-49. Prior to the enactment in 1913 of our first workers’ compensation act, this duty, as enunciated in both case law and this statute, seemed to provide the catalyst for legal actions instituted to establish employer liability for on-the-job injuries sustained by employees. During this period, verdicts awarded plaintiffs for work related injuries were upheld by this court. See, e.g., Coogan v. Aeolian Co., 87 Conn. 149, 87 A. 563 (1913); Allen v. Bishop Co., 85 Conn. 607, 84 A. 87 (1912); Delinks v. N.Y., N.H. & H. R. Co., 85 Conn. 102, 81 A. 1036 (1911); Belevicze v. Platt Bros. & Co., 84 Conn. 632, 81 A. 339 (1911); Worden v. Gore-Meenan Co., 83 Conn. 642, 78 A. 422 (1910); Swain v. O’Loughlin, 80 Conn. 200, 67 A. 480 (1907); Brennan v. Berlin Iron Bridge Co., 74 Conn. 382, 50 A. 1030 (1902); see also Cavanaugh v. Windsor Cut Stone Corporation, 80 Conn. 585, 69 A. 345 (1908) (new trial ordered on plaintiff’s appeal from verdict of only nominal damages).

In 1913, the legislature finally enacted, without a dissenting vote, our state’s “Workmen’s Compensation Law,” which went into effect on January 1,1914. See generally Grillo, “Fifty Years of Workmen’s Compensation — An Historical Review,” supra; Williams, “Distinction between ‘Employee’ and ‘Independent Contractor,’ ” 2 Conn. B.J. 282, 286 (1928). Thereafter, we stated that the “purpose of our Act . . . is to give to the employee and to his dependents compensation for the loss of wages accruing from the employee’s injury.” Bassett v. Stratford Lumber Co., 105 Conn. 297, 303, 135 A. 574 (1926). The act establishes, as part of an “on-going social compact,” a system that “compromise[s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., supra, 97, 105. Historically then, workers’ compensation “established almost a complete substitute for the common law of torts, as it affected the liability of industrial employers to their employees.” Id., 98 n.10, quoting 1 Harper & James, Torts (1956), p. xliii. In light of this historical survey, we next examine the tenets of statutory construction applicable in our examination of § 31-49.

We have repeatedly stated that “ ‘[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces.’ ” New Haven Water Co. v. North Branford, 174 Conn. 556, 565, 392 A.2d 456 (1978); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 205, 355 A.2d 21 (1974); Knoll v. Kelley, 142 Conn. 592, 595, 115 A.2d 678 (1955); State v. Staub, 61 Conn. 553, 566, 23 A. 924 (1892); see also N.Y., N.H. & H. R. Co.’s Appeal, 80 Conn. 623, 635, 70 A. 26 (1908). “ ‘[W]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.’ ” (Citations omitted.) In re Juvenile Appeal (85-BC), 195 Conn. 344, 365, 488 A.2d 790 (1985).

In considering § 31-49, we are mindful that the Workers’ Compensation Act was enacted after it and that, despite various amendments to the Workers’ Compensation Act, § 31-49 has never been amended. We are entitled to presume that, in passing a statute, the legislature not only did so with knowledge of the existing statutes but also that it did not intend to enact a conflicting statute. See State ex rel. Sloane v. Reidy, 152 Conn. 419, 425, 209 A.2d 674 (1965); State ex rel. Pape v. Dunais, 120 Conn. 562, 566, 181 A. 721 (1935). While the fact that the Workers’ Compensation Act postdated § 31-49 is not controlling, a subsequent legislative act “may throw light on the legislative intent of a former related act.” General Realty Improvement Co. v. New Haven, 133 Conn. 238, 242, 50 A.2d 59 (1946); Brown v. Cato, 147 Conn. 418, 421, 162 A.2d 175 (1960). That act is of “broad humanitarian scope”; DeCarli v. Manchester Public Warehouse Co., 107 Conn. 359, 364, 140 A. 637 (1928); and is “remedial” and “should be broadly construed to accomplish its humanitarian purpose.” Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979). “ ‘The purpose of the workmen’s compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault . . . .’’’(Citations omitted.) Plainville v. Travelers Indemnity Co., 178 Conn. 664, 669, 425 A.2d 131 (1979). It is thus fair to proceed on the premise that the act was intended to be and is the exclusive remedy available where it appears that the necessary employer-employee relationship exists and the injury-producing transaction arises out of and in the course of that employment unless it is demonstrated otherwise.

In speaking to § 31-49, we recognize, however, that we cannot assume that a legislative enactment is “devoid of purpose.” Savings Bank of Rockville v. Wilcox, 117 Conn. 188, 193, 167 A. 709 (1933). “Sound construction requires that the statute be considered ‘in the light of its history, its language, the purpose it is designed to serve and the circumstances surrounding its enactment.’ Connecticut Mutual Life Ins. Co. v. Rogers, 113 Conn. 14, 25, 154 A. 246 [1931].” Savings Bank of Rockville v. Wilcox, supra; State v. Palozie, 165 Conn. 288, 334 A.2d 468 (1973). We have already noted that the passage of § 31-49 predates that of the Workers’ Compensation Act. Certain of the language in § 31-49, as originally enacted and as it remains today, was adopted verbatim from this court’s decision in McElligott v. Randolph, supra, 161, and the balance of the statute incorporates the substance of other language in McElligott. See also Channon v. Sanford Co., 70 Conn. 573, 578-79, 40 A. 462 (1898); Gerrish v. New Haven Ice Co., 63 Conn. 9, 16-17, 27 A. 235 (1893). McElligott and Gerrish are cases that in substantive language enunciate the “vice-principal” language of § 31-49. We note parenthetically that while Professor Larson suggests that “the vice-principal doctrine” is an “outmoded concept”; 2A Larson, The Law of Workmen’s Compensation (1982) § 72.14; that view has met with demurrer. See Athas v. Hill, 54 Md. App. 293, 303 n.9, 458 A.2d 859 (1983), and cases there cited. The concept of vice-principals, of course, involves those who exercise some recognized common law nondelegable duty of the employer. See Schatz v. York Steak House Systems, Inc., 51 Md. App. 494, 496, 444 A.2d 1045 (1982). We have already referred to the substantial footnote by Justice Hammersley writing for the court in Nolan v. N.Y., N.H. & H. R. Co., supra, 194-95, which, fairly read, made the case for legislative and not judicial action. The original version of what is now § 31-49 was then passed. Some of our decisions thereafter sustained plaintiffs’ verdicts in circumstances strongly suggesting that the rationale of § 31-49 applied. In Swain v. O’Loughlin, supra, 204-205, in setting out the defendant employer’s duty, we cited not only McElligott v. Randolph, supra, but also General Statutes § 4702 (now § 31-49). Section 31-49 still enjoys vitality where appropriate. See, e.g., Balla v. Lonergan, 143 Conn. 197, 120 A.2d 705 (1956); see also General Statutes § 31-50. The Workers’ Compensation Act and § 31-49 thus coexist in our statutory law, each to apply where appropriate. Since the case before us is clearly within the scope of the Workers’ Compensation Act, § 31-49 provides no basis for the action asserted by the plaintiff.

Under these circumstances, it was not error for the trial court to have granted the defendant Raybestos’ motion for summary judgment. We said in Mingachos v. CBS, Inc., supra, 111, that “ ‘[t]he party moving for summary judgment “has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” ’ ” (Citations omitted.) A defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact. See 10A Wright, Miller & Kane, Federal Practice and Procedure (2d Ed. 1983) § 2734. That is the case here. “Because the burden of proof is on the moving party, the facts presented must be viewed in the light most favorable to the party opposing the motion.” (Citations omitted.) Mingachos v. CBS, Inc., supra.

Viewing the circumstances on summary judgment in the light most favorable to the plaintiff, any injury incurred by the plaintiff in this matter, at least as it pertains to the defendant Raybestos’ alleged culpability, resulted from the employer’s negligent supervision of its employees and as a matter of law was barred by our Workers’ Compensation Act. See LaBonte v. National Gypsum Co., 110 N.H. 314, 317, 269 A.2d 634 (1970). Therefore, under the circumstances, in view of § 31-284 (a) and the holdings of Jett v. Dunlap, supra, and Mingachos v. CBS, Inc., supra, “we find no error in the conclusion of the court that there existed no genuine issue as to any material fact and in its rendition of judgment for the defendant.” Horney v. Johnson, 167 Conn. 621, 623, 356 A.2d 879 (1975).

There is no error.

In this opinion Peters, C. J., Dannehy and F. Hennessy, Js., concurred.

Shea, J.,

concurring. As I am confused by the rationale of the majority opinion for the continuing viability of General Statutes § 31-49 after enactment of the Workers’ Compensation Act, I feel obliged to advance my own explanation for its present coexistence. I agree with the majority, nevertheless, that “§ 31-49 provides no basis for the action asserted by the plaintiff.”

At the time our first workers’ compensation act was enacted in 1913 and for many years thereafter its coverage did not extend to employers of fewer than five persons. Public Acts 1913, c.138, pt. A, § 2. The number of employees required to make the statute applicable has been reduced until, since 1967, it applies to anyone “using the services of one or more employees for pay.” Public Acts 1967, No. 842, § 1; General Statutes § 31-275. The Workers’ Compensation Act still excludes from coverage: “(A) An outworker; (B) one whose employment is of a casual nature, and who is employed otherwise than for purposes of the employer’s trade or business; (C) a member of the employer’s family dwelling in his house ... (D) any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week; or (E) an employee of a corporation who is a corporate officer and who elects to be excluded from coverage . . . .” General Statutes § 31-275 (5).

Section 31-49 is applicable wherever the master-servant relationship exists, regardless of whether more than one employee is hired or whether one of the exceptions to the coverage of the Workers’ Compensation Act set forth in § 31-275 (5) is applicable. In this limited area of civil liability, § 31-49 still may be regarded as playing a significant role in modifying some of the obsolete doctrines of the common law with respect to work-related injuries. See Balla v. Lonergan, 143 Conn. 197, 199, 120 A.2d 705 (1956).

In addition to its civil liability implications, § 31-49 is expressly included among those employment regulation statutes that the labor commissioner has a statutory duty to enforce “by giving proper orders or notices to the persons or corporations owning, operating or managing the factories or buildings inspected by him and shall make complaint to the state’s attorneys of any violation of said provisions.” General Statutes § 31-50. The retention of § 31-49 after passage of the Workers’ Compensation Act, therefore, in no way modifies the provisions of General Statutes § 31-284 (a) exempting employers from civil actions for damages on account of personal injuries sustained by employees who are covered by the act.

       The parties to this appeal acknowledge that a decision on the plaintiff’s claim for workers’ compensation has yet to be rendered. We anticipate that the workers’ compensation determination will be forthcoming following publication of this opinion.

       The defendant coworker, Joseph Tighe, has filed a counterclaim against the plaintiff, alleging that the plaintiff instigated the July, 1979 “assault and battery.” (Although the defendant characterizes this pleading as a “cross complaint,” it is under our practice rules a counterclaim. See Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 [1985].)

       The plaintiff places great reliance upon Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980), to support its position that the employer may not be shielded from actions at law based on the intentional assault by a fellow employee. Such reliance is misplaced. The Pennsylvania Workers’ Compensation Act “specifically excludes from [its] coverage an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between the employer and the employee.” Id., 388; see Pa. Stat. Ann., tit. 77, § 411 (Purdon Sup. 1984). This “third person” exclusion has been apparently construed to encompass “fellow employees.” See, e.g., Gillespie v. Vecenie, 292 Pa. Super. 11, 436 A.2d 695 (1981); Mike v. Borough of Aliquippa, supra. We note that Gillespie and Mike have since been explained to mean “that an employer cannot be vicariously liable for the intentional acts of his employee. Rather, when an employee’s intentional act, motivated by personal reasons, was foreseeable by the employer, the employer may be liable on a negligence theory for not providing a safe work place.” Scantlin v. Ulrich, 318 Pa. Super. 407, 412, 465 A.2d 19 (1983). Under Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), and Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985), that Pennsylvania rule is not the law in this state. See General Statutes § 31-307 and our discussion thereof in Mingachos v. CBS, Inc., supra, 104-106. The rationale of these Pennsylvania cases therefore is not applicable to construction of the Connecticut act. Nor is the rationale of Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St. 608, 433 N.E.2d 572, cert. denied, 459 U.S. 857, 103 S. Ct. 127, 74 L. Ed. 2d 110 (1982), or of Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W. Va. 1978), upon which the plaintiff also relies, applicable. See Mingachos v. CBS, Inc., supra, 107-108.

       In the second count of his complaint, the plaintiff attempts to state a claim under General Statutes § 31-49 by alleging that the defendant Raybestos’ conduct in this matter violated that statutory provision. The third count of his complaint sounds in negligence and seems to allege that § 31-49 establishes the employer’s statutory duty as well as the applicable standard of care. Our discussion of § 31-49 applies to both the second and third counts where apposite.

       “CHAPTER 155.
      “An Act concerning the Liability of Employers.

        “Be it enacted by the Senate and House of Representatives in General Assembly convened:

      “Section 1. It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his colaborers.
      “Sec. 2. It shall be the duty of the master to exercise reasonable care, in the appointment or designation of a vice-principal, to appoint as such vice-principal a fit and competent person.
      “Sec. 3. The default of a vice-principal in the performance of any duty imposed by law upon the master shall be the default of the master.
      “Sec. 4. This act shall take effect from its passage.
      Approved, June 17, 1901.”

       The original title of the provision was “Master’s duty to servant.” General Statutes (1918 Rev.) § 5320; (1902 Rev.) § 4702. Since the 1930 revision, the provision has been entitled “Care required of a master for his servant’s safety.”

       This result comports with our inclination to consider and construe employee protective statutory schemes as a whole. Mingachos v. CBS, Inc., 196 Conn. 91, 104, 491 A.2d 368 (1985); Maciejewski v. West Hartford, 194 Conn. 139, 146 n.4, 480 A.2d 519 (1984); Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 14, 434 A.2d 293 (1980); LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979); Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972).