text:
    Mary Stitzer v. Rinaldi’s Restaurant et al.
    (13505)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued February 8
    decision released May 9, 1989

      Jason M. Dodge, for the appellants (defendants).

      Edward T. Dodd, Jr., for the appellee (plaintiff).
   Shea, J.

The sole issue in this appeal is whether the Appellate Court erred in concluding that the plaintiff’s scars were compensable under General Statutes § 31-308 (d) of the Workers’ Compensation Act.

The facts relevant to this appeal are undisputed. On September 11, 1981, the plaintiff, while employed by the named defendant, sustained a compensable injury to her neck, which was diagnosed as a cervical disc injury. On January 5,1983, the plaintiff underwent an anterior C4-C5 discectomy and fusion. The fusion required that a piece of bone from her hip be removed and grafted onto the indicated vertebral bodies. The cervical fusion surgery and bone graft left surgical scars on the plaintiff’s hip and on the front portion of her neck.

The plaintiff sought an award under § 31-308 (d) for both scars. Section 31-308 (d) provides that “[i]n addition to compensation for total or partial incapacity . . . the commissioner may award . . . compensation . . . for any permanent significant disfigurement of, or permanent significant scar on, any part of the body . . . but no compensation shall be awarded . . . for any scar resulting from an inguinal hernia operation or any spinal surgery.” The compensation commissioner determined that neither scar was compensable, because they both resulted from spinal surgery. The compensation review division reversed that decision, concluding that the “spinal surgery” exclusion of § 31-308 (d) precludes compensation only for “scars resulting directly from an incision on the back” and that “[njeither of the scars here . . . derived from [such] an incision.” Thereafter, the defendants appealed to the Appellate Court, which held that, because “neither of the scars involved here resulted directly from an incision on the back during spinal surgery, the review division properly concluded that the plaintiff should be compensated for the scars pursuant to General Statutes § 31-308 (d).” Stitzer v. Rinaldi’s Restaurant, 15 Conn. App. 356,362, 544 A.2d 660 (1988). We conclude, however, that the plain language of § 31-308 (d) precludes recovery for the plaintiff’s scars and therefore we reverse the judgment of the Appellate Court.

This court has often held that when the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978). The Appellate Court found that the legislative background of the disfigurement provisions of § 31-308 (d) disclosed ambiguity in the spinal surgery exclusion. We conclude, however, that the facts of this case fit precisely within the bounds established by the plain language of § 31-308 (d), and therefore, reference to the legislative history of § 31-308 (d) was unnecessary.

In construing statutes, words and phrases are to be construed according to the commonly approved usage of the language. General Statutes § 1-1; State v. Hill, 201 Conn. 505, 516, 518 A.2d 388 (1986); State v. Moore, 158 Conn. 461, 465, 262 A.2d 166 (1969). Within the framework of the workers’ compensation statutes, therefore, where no statutory definitions refine our understanding of “spinal surgery,” we note that “vertebrae” have been defined as “the bony or cartilaginous segments comprising the spinal column.” Webster’s Third New International Dictionary. In the present case, the plaintiff underwent surgery for the fusion of two of her cervical vertebrae. The inescapable conclusion, therefore, is that such a procedure constitutes spinal surgery. Further, there is no dispute, and the compensation commissioner found, that the plaintiffs scars would not exist had she not undergone this surgery. Thus, the commissioner correctly determined that neither scar was compensable, because both were scars “resulting from . . . spinal surgery.” General Statutes § 31-308 (d).

The construction urged by the plaintiff, and adopted by the Appellate Court, would engraft the further requirement that, for the “spinal surgery” exclusion to apply, the scar must not only result from such surgery but must also be located on the back. We refuse to adopt such a construction for two reasons. First, this court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein. Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986). In determining legislative intent, in the absence of ambiguity, we look only to what the legislature actually said, not to what it might have meant to say. Id., 716-17; Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984). Second, the evolution of our present exclusion of compensation for scars resulting from inguinal hernia operations, contained in the same clause establishing the spinal surgery exclusion, is informative in illustrating the normal procedure for narrowing an exclusion the legislature deems too broad. Prior to 1975, the disfigurement provision excluded recovery for any scar resulting from “a hernia operation.” In 1975, however, Public Acts 1975, No. 75-48, changed the hernia operation exclusion to apply only to “an inguinal hernia operation.” This amendment demonstrates that the legislature knows how to use limiting language to narrow an exclusion, when it chooses to do so.

Another basis upon which the Appellate Court relied in finding ambiguity in the spinal surgery exclusion of § 31-308 (d) was the changing nature of medical techñiques. The court stated that “[ajnterior incisions on the neck for cervical disc surgery were not generally known in 1967. Only recently has the frontal approach been widely utilized.” Stitzer v. Rinaldi’s Restaurant, supra, 361. The court concluded, therefore, that the legislature, being unaware of such a procedure, intended to exclude from compensation only incisions on the back. This analysis, however, makes two assumptions with which we disagree. First, in limiting the spinal surgery exclusion to incisions on the back, the Appellate Court assumed that the legislature contemplated that no scars would result elsewhere on a patient’s body from such an operation. While this argument may have some validity for the scar on the front of the plaintiff’s neck, the same cannot be said for the scar on the plaintiff’s hip. The medical technique of removing a piece of bone from part of a patient’s body, thus causing a scar, and using it to fuse vertebrae was widespread long before the legislature enacted the spinal surgery exclusion. See, e.g., Rood v. Russo, 161 Conn. 1, 283 A.2d 220 (1971) (piece of hip bone used in 1966 spinal fusion operation); Johanneson v. Ring, 82 Ill. App. 2d 340, 226 N.E.2d 291 (1967) (piece of hip bone used in 1963 spinal fusion operation); Roush v. Alkire Truck Lines, Inc., 245 S.W.2d 8 (Mo. 1952) (bone graft from leg used in 1950 spinal fusion operation); Moore v. Public Service Coordinated Transport, 15 N. J. Super. 499, 83 A.2d 725 (1951) (bone taken from hip used to fuse two vertebrae in 1949 operation).

We agree with the compensation commissioner that both the scar on the plaintiff’s hip and that on her throat resulted from spinal surgery because they would not have occurred but for that surgery. Accordingly, the compensation review division erred in reversing the decision of the commissioner and the Appellate Court erred in affirming that decision.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the compensation review division with direction to affirm the commissioner’s decision.

In this opinion the other justices concurred.

       In any event, reference to the legislative history of General Statutes § 31-308 (d) discloses ambiguity in that history, not in the plain language of the spinal surgery exclusion. The legislative history does not disclose whether the legislature contemplated the situation presented in this case. Thus, we are left with only the plain language of the statute.

       The evidence on this point is scanty. The text relied upon by the Appellate Court states: “In recent years a frontal approach to repair disc injuries has been utilized by some surgeons instead of the posterior fusion procedure.” 1B R. Gray & L. Gordy, Attorneys’ Textbook of Medicine (3d Ed 1988) H 10 A.75 (2), p. 10A-68. This statement does not indicate how widely known the anterior spinal fusion technique was in 1967, nor does it state how recently certain surgeons began choosing this procedure over posterior spinal fusion. It cannot be said with any degree of certainty, therefore, that the legislature in 1967 was unfamiliar with the anterior approach to spinal fusion or that it did not consider such a procedure when enacting the spinal surgery exclusion found in General Statutes § 31-308 (d). Cf. A-516 Rec. & Briefs, Part 1, p. 442, Rood v. Russo, 161 Conn. 1, 283 A.2d 220 (1971) (surgeon who performed anterior spinal fusion of fifth and sixth cervical discs in 1966 testified that incision was made in the patient’s neck by the throat); Dr. Pepper Bottling Co. v. Industrial Commission, 134 Colo. 238, 301 P.2d 710 (1956) (anterior spinal fusion performed in 1953); Fisher v. Carroll Daniel Fisher Construction Co., 212 So. 2d 289 (Fla. 1968) (anterior spinal fusion of lumbar vertebrae performed in 1962); Johanneson v. Ring, 82 Ill. App. 2d 340,226 N.E.2d 291 (1967) (anterior spinal fusion on patient’s neck performed in 1963).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Kenneth Hotarek v. Suzanne Benson
    (13581)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued March 1
    decision released May 9, 1989

      Kerin M. Woods, for the appellant (plaintiff).

      EdwardB. O’Connell, with whom, on the brief, was Cheryl V. Helms, for the appellee (defendant).
   Callahan, J.

This is an appeal from an order of the Probate Court for the district of Old Lyme ascertaining the heirs and ordering the distribution of the intestate estate of Paul Hotarek, a deceased minor. See General Statutes § 45-288 et seq. The order provided that the defendant, Suzanne Benson, the biological mother of Paul Hotarek, was an heir of the deceased and entitled to inherit one half of his estate. The order also provided that the plaintiff, Kenneth Hotarek, the father of the deceased, was an heir and entitled to inherit the other half.

The facts leading to this probate appeal are unique and tragic. The plaintiff, Kenneth Hotarek, and the defendant, Suzanne Benson, were married on July 27, 1968. The deceased, Paul Hotarek, issue of the marriage, was bom on October 25,1970. The Hotarek marriage was dissolved on October 26, 1972, when Paul was two years old. On July 10, 1986, at the age of fifteen, Paul was killed in a motor vehicle accident.

Subsequent to Paul’s death, his estate settled a claim against the tortfeasor who was responsible for his demise for $20,000 and was subsequently awarded underinsured motorists benefits in the amount of $525,000. The net proceeds of those two awards were the only substantial assets in the decedent’s estate. Immediately following Paul’s death and during the initial stages of the probate proceedings, the defendant could not be located. Consequently, the Probate Court appointed a guardian ad litem to protect her interests. Her guardian ad litem engaged the services of an investigator who finally tracked down the defendant on December 10, 1987, at her residence in Hurricane, Utah. It was at that time that the defendant first learned of her son’s death in Connecticut some seventeen months earlier. Her appearance, the Probate Court order distributing one half of Paul’s net estate to her, and the plaintiff’s appeal of that order followed.

Throughout these proceedings the plaintiff has asserted that for approximately thirteen years, from December, 1973, until the date of Paul’s death in 1986, the defendant had no contact with the deceased. He avers that during that time the defendant failed to provide any financial support to, maintain any interest in, or display any love and affection for her son. He acknowledges that the defendant’s parental rights were never officially terminated but maintains that because the defendant had abandoned her minor son during his life she was not entitled to share in his estate after his death.

The Probate Court disagreed and ordered the distribution of the decedent’s net estate, one half to the plaintiff and one half to the defendant in accord with General Statutes §§ 45-272, 45-276 (a) (1) and 45-280 (b). The plaintiff, thereafter, appealed to the Superior Court. After the pleadings were closed, the Superior Court granted the defendant’s motion for summary judgment based on the plaintiffs admissions that he and the defendant had been married, that the deceased was the issue of their marriage, and that the defendant’s parental rights “were not terminated as termination of parental rights is defined in Section 17-32d (e) of the Connecticut General Statutes.” See Practice Book § 378 et seq. In granting the defendant’s motion for summary judgment the Superior Court ruled that “there is neither common law nor statutory law upon which relief can be granted [to the plaintiff].” We agree.

General Statutes § 45-276 (a) (1) provides that if a person dies intestate leaving no spouse or children, the residue of the intestate’s estate shall be distributed equally to the decedent’s parent or parents. Neither § 45-276 (a) (1) nor any other statute creates an exception disinheriting a parent who has abandoned a minor child who later dies intestate. The plaintiff concedes that to be the statutory law. He urges, however, that we find that the Probate Court and the Superior Court erred in failing to exercise an unspecified, inherent equitable power to vary the statute to prevent an injustice. That failing, he implores this court to promulgate, by judicial fiat, a rule that will preclude the defendant from inheriting because of her abandonment of her minor child. Unfortunately, we can do neither.

The law governing descent and distribution emanates from the legislature and is purely statutory. Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S. Ct. 398, 86 L. Ed. 452 (1942); Bird v. Plunkett, 139 Conn. 491, 501-502, 95 A.2d 71 (1953); In re Holibaugh, 18 N. J. 229, 235,113 A.2d 654(1955); Vinson v. Chappell, 275 N.C. 234, 240,166 S.E.2d 686 (1969); 23 Am. Jur. 2d, Descent and Distribution § 9. The legislature has, by statute, carved out exceptions to the statutes governing descent and distribution to deprive an ostensibly rightful heir, falling within the ambit of those exceptions, of an otherwise lawful inheritance. Under § 45-273a (a) a person who, without sufficient cause, abandons his or her spouse is foreclosed from receiving a statutory share of the estate of the deceased spouse. Under § 45-279 (a)* **** a person finally convicted of murder is precluded from inheriting any part of the estate of the deceased victim; see Bird v. Plunkett, supra; see also General Statutes § 45-279 (b), (c) (1) and (2). Absent, however, is any statute barring a parent who has abandoned a minor child from inheriting from the estate of the minor child.

Even if the omission of such a statute were the result of legislative oversight or neglect, we have no power to supply the omission or to remedy the effect of the neglect. Matter of Zolessi’s Will, 154 Misc. 313, 315, 277 N.Y.S. 137 (1935). “[A]ny qualification [of the law of descent and distribution] pronounced by this court would be a judicial grafting of public policy restrictions on an explicit statutory provision.” Anstine v. Hawkins, 92 Idaho 561, 562, 447 P.2d 677 (1968); Kreisel v. Ingham, 113 So. 2d 205, 209 (Fla. App. 1959). The authorities make clear that judicial tribunals have no concern with the policy of legislation and they cannot engraft upon the provisions of the statutes of descent and distribution an exception to bar an inheritance. Bird v. Plunkett, supra, 500. The statutes cannot be changed by the court to make them conform to the court’s conception of right and justice in a particular case. Estate of Kirby, 162 Cal. 91, 94,121 P. 370 (1912); 23 Am. Jur. 2d, supra, § 12. To avoid trenching on legislative ground, the court must take the view that if the legislature had intended such an exception from the statutes as is sought in this case, it would have said so. See Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143 (1971); Lewis v. Shannon, 121 Conn. 594, 598, 186 A. 540 (1936); Strickland v. Wysowatcky, 128 Colo. 221, 224, 250 P.2d 199 (1952); 23 Am. Jur. 2d, supra, § 3.

In the absence of statutory provisions to the contrary, the fact that a parent has abandoned and neglected a deceased minor child does not bar the right of that parent to inherit from the child’s estate under the statutes governing descent and distribution. Anderson v. Anderson, 211 Tenn. 566, 569-70, 366 S.W.2d 755 (1963); see Bird v. Plunkett, supra, 504; Poque v. Poque, 434 So. 2d 262, 263 (Ala. Civ. App. 1983). If the law is to be changed to make provision for the situation at hand, it is for the legislature to make the change, not the courts. Tarlo’s Estate, 315 Pa. 321, 325-26, 172 A. 139 (1934). We urge the legislature to consider doing so.

There is no error.

In this opinion the other justices concurred.

       The total net estate was approximately $300,000.

       Hurricane is located in Washington County in southwest Utah, population 2660, elevation 3266 feet. Rand McNally Commercial Atlas and Marketing Guide (120th Ed. 1989).

       “[General Statutes] Sec.45-272. distribution of estates, (a) court to ascertain heirs AND distributees. The court of probate shall ascertain the heirs and distributees of each intestate estate, and the heirs and distributees of, and their respective shares in, each testate so far as the will may leave the same indefinite and necessary to be defined or so far as it is necessary to give effect to an agreement made in accordance with the provisions of section 45-272a.
      “(b) COURT TO ORDER FIDUCIARY TO DISTRIBUTE ESTATE. The court shall order the administrator or other fiduciary charged with the administration of the estate to deliver possession of or pay over the intestate estate and the shares in each testate estate so far as the will may leave the same indefinite and necessary to be defined to the person or persons entitled thereto in the proportions provided by law, or, if distributors are appointed or a mutual distribution is filed, as provided in section 45-273, or if disinterested persons are appointed to make division or an agreement is filed, as provided in section 45-272a, the court shall order the fiduciary of the estate to deliver possession of or pay over the same in accordance with the division made by such distributors or mutal distribution or agreement, as the case may be. The fiduciary shall take proper receipts for any such delivery or payment.”
      General Statutes § 45-276 (a) (1) provides: “distribution when there ARE NO CHILDREN OR REPRESENTATIVES OF THEM, (a) (1) If there are no children or any legal representatives of them, then, after the portion of the husband or wife, if any, is distributed or set out, the residue of the estate shall be distributed equally to the parent or parents of the intestate.”
      General Statutes § 45-280 (b) provides: “distribution of damages for CAUSING DEATH. . . .
      “(b) All damages recovered for injuries resulting in death, which death occurred on or after October 1, 1961, after payment of the costs and expenses of suit, all expenses of last illness and all funeral bills, the expenses of administration and claims against the estate and such amount for the support of the surviving spouse or family of the deceased during the settlement of the estate as the court of probate may allow, shall be distributed as personal estate in accordance with the last will and testament of the deceased if there is one or, if not, in accordance with the law concerning the distribution of intestate personal estate. Such damages shall not be subject to taxation under the provisions of chapter 216.”

       General Statutes § 17-32d (e) provides: “definitions. As used in section 17-51 and this part:
      “(e) ‘Termination of parental rights’ means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child.”

       General Statutes § 45-273a (a) provides: “succession upon death of SPOUSE. ELECTION AGAINST WILL. INTESTATE succession, (a) On the death of a husband or wife, the survivor shall be entitled to the use for life of one-third in value of all the property, real and personal, legally or equitably owned by the other at the time of his or her death, after the payment of all debts and charges against the estate. Such third shall be set out by the fiduciary charged with the administration of the estate or, in the discretion of the probate court on its own motion or upon application by any interested person, by distributors appointed by the court of probate in any property, real or personal or both, according to the judgment of such fiduciary or distributors. The right to such third shall not be defeated by any disposition of the property by will to other parties. If the husband has by will devised or bequeathed a portion of his property to his surviving -wife, or if the wife by will has devised or bequeathed a portion of her property to her surviving husband, such provision shall be taken to be in lieu of the share hereinabove provided for, unless the contrary is expressly stated in the will or clearly appears therein; but, in any such case, the surviving spouse, or the conservator or guardian of the estate of the surviving spouse, with the approval, after public notice and hearing, of the court of probate by which such conservator or guardian was appointed, shall have his or her election whether to accept the provision of such will or take such life use of one-third. Such election shall be made in writing signed by the party entitled to make the election and lodged with the court of probate before which the estate is in settlement, within two months after the expiration of the time limited for the exhibition of claims against the estate. If such election is not so made, such person shall be taken to have accepted the provisions of the will and shall be barred of such statutory share. In any case where the husband or wife by will does not make any provision for the surviving wife or husband, the surviving spouse, or the conservator or guardian of the estate of the surviving spouse, with the approval, after public notice and hearing, of the court of probate by which such conservator or guardian was appointed, shall, within two months after the expiration of the time limited for the exhibition of claims against such estate, file a notice, in writing, of his or her intention to take a life use of one-third of the estate under the provisions of this section -with the court of probate before which the estate is in settlement, and if such notice is not so filed, such person shall be barred of such statutory share. A surviving spouse shall also, when in the opinion of the court of probate it is necessary, be allowed a reasonable sum from the estate for Ms or her support and for the support of his or her family during the settlement of the estate; but, in that case, such person shall not take his or her statutory share until the expiration of the time for which such allowance is made. The provisions of this section with regard to the statutory share of the surviving husband or wife in the property of the other shall not apply to any case in which, by written contract made before or after marriage, either party has received from the other what was intended as a provision in lieu of such statutory share; nor shall either party be entitled to such statutory share who, without sufficient cause, abandoned the other and continued such abandonment to the time of the other’s death.”

       General Statutes § 45-279 (a) provides: “WHEN PERSON GUILTY OF KILLING ANOTHER TO INHERIT FROM OR RECEIVE PROPERTY OR INSURANCE PROCEEDS AS beneficiary OF VICTIM, (a) A person finally adjudged guilty, either as the principal or accessory, of any crime under section 53a-54a or 53a-54b, or in any other jurisdiction, of any crime, the essential elements of which are substantially similar to such crimes, shall not inherit or receive any part of the estate of the deceased, whether under the provisions of any act relating to intestate succession, or as devisee or legatee, or otherwise under the will of the deceased, or receive any property as beneficiary or suvivor of the deceased; and such person shall not inherit or receive any part of the estate of any other person when such homicide or death terminated an intermediate estate, or hastened the time of enjoyment. With respect to inheritance under the will of the deceased, or rights to property as heir, devisee, legatee or beneficiary of the deceased, the person whose participation in the estate of another or whose right to property as such heir, devisee, legatee or beneficiary is so prevented under the provisions of this section shall be considered to have predeceased the person killed. With -respect to property owned in joint tenancy with rights of survivor-ship with the deceased, such final adjudication as guilty shall be a severance of the joint tenancy, and shall convert the joint tenancy into a tenancy in common as to the person so adjudged and the deceased but not as to any remaining joint tenant or tenants, such severance being effective as of the time such adjudication of guilty becomes final. When such jointly owned property is real property, a certified copy of the final adjudication as guilty shall be recorded by the fiduciary of the deceased’s estate, or may be recorded by any other interested party in the land records of the town where such real property is situated.”

       General Statutes § 45-279 (b) provides: “In all other cases where a defendant has been convicted of killing another person, the right of such defendant to inherit or take any part of the estate of the person killed or to inherit or take any estate as to which such homicide terminated an intermediate estate, or hastened the time of enjoyment, or to take any property as beneficiary or survivor of the deceased shall be determined by the common law, including equity.”
      General Statutes § 45-279 (c) (1) provides: “A named beneficiary of a life insurance policy or annuity who intentionally causes the death of the person upon whose life the policy is issued or the annuitant, is not entitled to any benefit under the policy or annuity, and the policy or annuity becomes payable as though such beneficiary had predeceased the decedent.”
      General Statutes § 45-279 (c) (2) provides: “A conviction under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a, shall be conclusive for purposes of this subsection. In the absence of such a conviction, the superior court may determine by the common law, including equity, whether the named beneficiary is entitled to any benefit under the policy or annuity. In any proceeding brought under this subsection, the burden of proof shall be upon the person challenging the eligibility of the named beneficiary for benefits under a life insurance policy or annuity.”


author: Per Curiam.

text:
    Greater Bridgeport Transit District v. Commission on Human Rights and Opportunities et al.
    (13620)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued April 5
    decision released May 9, 1989

      John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      Charles Krich, staff attorney, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).
   Per Curiam.

The dispositive issue in this appeal is whether an employer charged with age discrimination may seek injunctive relief to avoid responding to interrogatories propounded by the administrative agency authorized to investigate such complaints. The defendant Commission on Human Rights and Opportunities (CHRO) received a complaint from the defendant Frank T. Comparato, charging that the plaintiff, Greater Bridgeport Transit District, had discharged Comparato because of his age, in violation of General Statutes § 46a-60 (a) (1). In order to investigate the merits of the Comparato complaint, the CHRO issued a set of interrogatories to the plaintiff. The plaintiff claimed that it was excused from having to respond to these interrogatories because Comparato was a “municipal employee” under General Statutes (Rev. to 1987) § 46a-60 (b) (1) (A) and hence was excluded from the protection of § 46a-60 (a) (1). When the CHRO insisted on compliance with its interrogatories, the plaintiff initiated the present action for injunctive relief. The trial court granted the CHRO’s motion to dismiss, principally on the ground that the plaintiff did not qualify as a “municipality” under § 46a-60 (b) (1) (A). The plaintiff has appealed. Whether the plaintiff is a municipality or not, the trial court’s judgment of dismissal was correct.

As a general matter, this court has repeatedly required litigants to exhaust their administrative remedies before a judicial challenge to administrative actions will be entertained. Pet v. Department of Health Services, 207 Conn. 346, 351-52, 542 A.2d 672 (1988); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987); LaCroix v. Board of Education, 199 Conn. 70, 78-80, 505 A.2d 1233 (1986). In particular, we have recognized the delay and disruption in the administrative process that would result from judicial interference with statutorily authorized administrative investigations intended to determine whether there is a factual basis for the initiation of formal proceedings. Commission on Human Rights & Opportunities v. Archdiocesan School Office, 202 Conn. 601, 606, 522 A.2d 781, appeal dismissed, 484 U.S. 805, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 514-15, 461 A.2d 938 (1983). When administrative agencies have come to court to require respondents to comply with interrogatories, we have accordingly refused to permit judicial inquiry into the applicability of the statute to particular cases before completion of the investigatory process. Commission on Human Rights & Opportunities v. Archdiocesan School Office, supra, 605-608; In re Application of Ajello v. Moffie, 179 Conn. 324, 325-26, 426 A.2d 295 (1979). In the absence of a showing that the interrogatories propounded by the agency were overbroad, burdensome or irrelevant; In re Application of Ajello v. Moffie, supra, 327; or would clearly and immediately infringe constitutional rights; Commission on Human Rights & Opportunities v. Archdiocesan School Office, supra, 607-608; we have disallowed motions to dismiss the agency’s request for enforcement of its interrogatories. Such defensive actions are improper because they seek “to raise prematurely issues that are not yet ripe for adjudication.” Id., .605.

The present case presents the mirror image of Commission on Human Rights & Opportunities v. Archdiocesan School Office, and In re Application of Ajello v. Moffie. The plaintiff did not even wait for the CHRO to invoke the authority conferred upon it by General Statutes §§ 46a-83 (c) and 46a-88 (a) to require answers to its interrogatories relating to its investigation of a complaint of employment discrimination. Instead, the plaintiff filed a preemptive lawsuit to enjoin the CHRO from further investigative activities directed against the plaintiff. This procedural distinction makes no substantive difference. As in the cited cases, the issue that the plaintiff seeks to raise is its eligibility for a statutory exemption. “[T]he CHRO investigation may not be forestalled at this point in the proceeding simply because [an issue of statutory construction] may later be raised if the outcome of the investigatory process is adverse to the [plaintiff].” Commission on Human Rights & Opportunities v. Archdiocesan School Office, supra, 608. The trial court lacked jurisdiction to hear this complaint, and hence properly granted the CHRO’s motion to dismiss.

There is no error.

       General Statutes § 46a-60 (a) (1) provides that it shall be a prohibited discriminatory practice “[f]or an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to . . . discharge from employment any individual . . . because of the individual’s ... age .... ”

       General Statutes § 46a-60 (b) (1) provided at the time of the filing of the complaint with the CHRO: “The provisions of this section concerning age shall not apply to: (A) The termination of employment of any person who has attained the age of seventy and is entitled to benefits under any pension or retirement plan or system provided for state or municipal employees or for teachers in the public schools of the state or under a pension or retirement plan or system provided for employees of an institution of higher education . ”

       The plaintiff’s appeal was originally filed in the Appellate Court. We transferred the case to this court pursuant to Practice Book § 4023.

       General Statutes § 46a-83 (c) provides: “In the investigation of any complaint filed pursuant to this chapter, the commission may issue subpoenas requiring the production of records and other documents relating to the complaint under investigation.”
      General Statutes § 46a-88 (a) provides: “Upon failure of any person to answer interrogatories issued pursuant to subsection (10) of section 46a-54, the commission may file a petition with the interrogatories attached with the superior court of the judicial district in which the violation is alleged to have occurred or where such person resides or transacts business, requesting the court to order that an answer be filed.”


author: Glass, J. Callahan, J.,

text:
    Iseli Company v. Connecticut Light and Power Company
    (13590)
    Healey, Shea, Callahan, Glass and Hull, Js.

      Argued February 9
    decision released May 9, 1989

      Thomas J. Sansone, with whom was James K. Robertson, Jr., for the appellant (defendant).

      David M. Sheridan, for the appellee (plaintiff).
   Glass, J.

The plaintiff, Iseli Company, had an employee named Roger Bolduc, Sr. In February, 1983, Bolduc and his son, Roger Bolduc, Jr., were injured when an explosion occurred at their Watertown home. The explosion apparently resulted from an ignition of natural gas leaking from the facilities of the defendant Connecticut Light and Power Company (CL&P). The plaintiff compensated the Bolducs for their medical expenses and paid lost wages to Roger Bolduc, Sr. This compensation was made through the plaintiffs self-insurance plan rather than through its workers’ compensation plan.

The plaintiff filed a complaint on May 12,1986, alleging that the defendant had agreed to reimburse the plaintiff for the expenses paid to the Bolducs. In return, the plaintiff had agreed to forgo any claim against the defendant for the medical expenses and lost wages. The case was tried to the jury. At the close of the plaintiffs case, and again at the close of all the evidence, the defendant moved for a directed verdict, arguing that the alleged reimbursement contract failed for lack of consideration. The trial court denied the motions. At the conclusion of all the evidence, the trial court instructed the jury that it could award interest to the plaintiff should it decide the case in the plaintiffs favor. The jury returned a general verdict in favor of the plaintiff and awarded $31,327.98 in damages plus interest. The defendant made separate motions for judgment notwithstanding the verdict and to set aside the verdict, both of which the trial court denied. The trial court rendered judgment on the verdict, and included the amount of $15,455.97 as interest.

The defendant appealed to the Appellate Court from the judgment rendered on the verdict, claiming that the trial court erred: (1) by failing to instruct the jury on the legal nonviability of the plaintiffs underlying claim; (2) by denying the defendant’s motions for a directed verdict; and (3) by permitting the jury to award the plaintiff interest. Pursuant to Practice Book § 4023, we transferred the appeal to ourselves. We find no error.

I

The defendant’s first two claims concern the issue of whether the plaintiff’s forbearance from bringing an action against the defendant was valid consideration for supporting the parties’ reimbursement agreement. Before embarking on an analysis of the defendant’s specific claims, it will be useful to set forth the relevant law.

“Forbearance from suit is, of course, valid consideration for a contract if the claim on which the suit was threatened was valid and enforceable. Hyde v. Lipiec, 12 Misc. 2d 107, 173 N.Y.S.2d 901 [1958]; 1 Corbin, Contracts § 139; 1 Williston, Contracts (3d Ed.) § 135; 17 C.J.S., Contracts § 104 (1). Moreover, ‘[i]t is a general rule of law that forbearance to prosecute a cause of action, where the right is honestly asserted under the belief that it is substantial, although it may in fact be wholly unfounded, is a valuable consideration which will support a promise.’ Joffe v. Bonn, 14 F.2d 50, 52 (3d Cir. [1926]). See Warner v. Warner, 124 Conn. 625, 632, 1 A.2d 911 [1938]. Forbearance, however, is not a sufficient consideration unless the claimant had some reasonable ground for belief in the justice of the claim; 1 Corbin, op. cit. § 140; Warner v. Warner, supra; or if the claim is not made in good faith. Pash v. Wagner, 2 Misc. 2d 822, 151 N.Y.S.2d 411 [1956]; Plunkett v. O’Connor, 162 Misc. 839, 295 N.Y.S. 492 [1937]; 17 C.J.S., Contracts § 104 (2).” Dick v. Dick, 167 Conn. 210, 225, 355 A.2d 110 (1974). Although the principles governing forbearance as consideration set forth in Dick were based on an analysis of New York law; id., 223; our reference to the Warner decision therein indicates that those principles are also applicable in Connecticut. Cf. Hofmann v. DeFelice, 136 Conn. 187,190, 70 A.2d 129 (1949); Savings Bank of Rockville v. Cohn, 116 Conn. 480, 485, 165 A.2d 607 (1933); Markel v. DiFrancesco, 93 Conn. 355, 359, 105 A. 703 (1919); Thomas’Appeal, 85 Conn. 50, 53-54, 81 A. 972 (1911).

“Under, common law a cause of action for personal injuries cannot be assigned, and in the absence of a statutory provision to the contrary a right of action for personal injuries resulting from negligence is not assignable before judgment. 6 Am. Jur. 2d 220, Assignments, § 37. The rule is succinctly stated in the Restatement, 2 Contracts § 547 (1) (d): ‘An assignment of a claim against a third person or a bargain to assign such a claim is illegal and ineffective if the claim is for . . . (d) damages for an injury the gist of which is to the person rather than to property, unless the claim has been reduced to judgment.’ ” Berlinski v. Ovellette, 164 Conn. 482, 485, 325 A.2d 239 (1973). Although there is an exception to this rule under the workers’ compensation statutes; see General Statutes § 31-293 (a) (employer who has paid workers’ compensation benefits to injured employee can bring action against tortfeasor); the plaintiff in the present case conceded at oral argument that it did not acquire a legally valid cause of action against the defendant by compensating the Bolducs for injuries they received in the explosion.

A

The defendant first argues that the trial court should have instructed the jury that the legal nonviability of the claim the plaintiff agreed to forgo, in exchange for the defendant’s promise of reimbursement, was a factor the jury should consider in assessing the reasonableness of the plaintiff’s belief in the validity of that claim. Dick v. Dick, supra; Berlinski v. Ovellette, supra; Warner v. Warner, supra. A review of the record demonstrates, however, that the defendant did not distinctly raise this claim at trial in accordance with the rules of practice. Practice Book § 315. Consequently, we do not reach the merits of the defendant’s first claim.

At trial, the defendant submitted the following request to charge. “10. The testimony provided by [Andrew] Gionta of the Iseli Company indicates that his company did claim to suffer a loss or detriment as a result of CL&P’s alleged promise, namely its foregoing of waging a claim against CL&P. This is the only loss claimed to have been sustained by the plaintiff. In Connecticut, it is well-settled that one person cannot assign his rights to make a claim for personal injuries. Berlinski v. Ovellette, [supra]. Here, that is precisely what has been done, contrary to the law of our State. The plaintiff claims that it suffered a loss or detriment, in relying upon CL&P’s promise, by foregoing its supposed right to make a claim against CL&P for expenses arising from [the] injuries. It is not claimed that the plaintiff has any other claim to assert against CL&P other than for [the] injuries. This type of claim, however, is prohibited by our law. Therefore, you cannot find that the plaintiff suffered any detriment as a result of its promise to give up a claim which is itself prohibited by law.” (Emphasis added.)

The defendant’s request to charge materially differs from its claim on appeal. The defendant now argues that the trial court erred by failing to instruct the jury that the nonviability of the claim the plaintiff agreed to forgo is one factor for the jury’s consideration in assessing the plaintiff’s reasonableness. See Dyer v. National By-Products, Inc., 380 N.W.2d 732, 735-36 (Iowa 1986). In its request to charge, however, the defendant sought an instruction that the reimbursement agreement was necessarily unenforceable because of the invalidity of the underlying claim. The requested instruction, in fact, was an inaccurate statement of the law. Dick v. Dick, supra.

Further, the defendant did not distinctly raise its present claim by taking a seasonable exception. Practice Book § 315. In accordance with the Dick standard, the trial court instructed the jury that “forbearance to prosecute a cause of action, where the right is honestly asserted under the belief that it is substantial, although it may in fact be wholly unfounded, is a valuable consideration which will support a promise. Forbearance, however, is not a sufficient consideration unless the Plaintiff had some reasonable ground for belief in the justice of the claim.” See Dick v. Dick, supra. To this instruction, the defendant raised the following exception. “Finally, Your Honor, I realize that [given] your previous ruling on the motion for directed verdict you were unconvinced by the authority of Berlinski [v.] Ovellette, [supra,] noted in my request to charge number 10, but I would cite that Your Honor did omit an instruction concerning the propriety of the claim to pursue against this Defendant the recovered sum, for both lost wages as well as medical benefits.”

Although the defendant’s exception referred to the “propriety” of the plaintiff’s underlying claim, it drew no nexus between the claim’s lack of “propriety” and the reasonableness of the plaintiff’s belief. The substance of the exception did no more than repeat the defendant’s request to charge. If we were to hold that this exception distinctly raised the defendant’s present claim, we would be requiring trial courts to read minds. Cf. Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669 (1974) (trial court bound to charge jury correctly where material and important issue is brought to court’s attention). Consequently, we do not reach the merits of the defendant’s first claim of error. Practice Book § 315.

B

The defendant next claims that the trial court erred in denying its motions for a directed verdict. It argues that the plaintiff failed to present proof on the reasonableness of the plaintiffs belief in the validity of the surrendered claim. We disagree.

"Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).” Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). "Our review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the ‘concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . . ’ Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted.) Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986); see Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

At trial, the plaintiff’s personnel manager, Andrew Gionta, testified that he initially contacted the defendant’s offices by telephone in February, 1983, regarding reimbursement for the medical expenses and lost wages paid to the Bolducs. Gionta discussed the plaintiff’s claim on several occasions with Warren Porter, a senior claims representative employed by the defendant. Gionta testified that Porter agreed with him in a telephone conversation in June, 1983, to reimburse the plaintiff for expenses paid to the Bolducs. Under the agreement, the defendant would reimburse the plaintiff by separate payments in July and October of 1983. Gionta subsequently summarized his conversation with Porter in a letter directed to Porter’s attention dated June 17,1983. The letter included bills of the Bolducs’ expenses. Gionta testified that Porter had suggested that the payments be made in two installments, and that Gionta include bills of the expenses with the letter. In August, 1983, however, Porter telephoned Gionta, stating that Porter’s agreement had been “overruled” by the defendant’s attorneys “because they didn’t want to jeopardize their position with the Roger Bolduc case because they hadn’t settled with him yet.”

On cross-examination, Gionta testified as follows:

“Q. You claim that you forebore [sic] from doing something as a result of what Mr. Porter told you? Is that correct?

“A. No, we had an agreement that we were going to be reimbursed for our medical expenses.

“Q. In exchange for?

“A. In an exchange that we would give up any claim for wages from Mr. Bolduc.

“Q. So you would forebear [sic] from making claims?

“A. Yes, that’s correct.

“Q. In exchange for CL&P’s reimbursement?

“A. That is correct.”

As noted above, at the conclusion of the trial, the trial court instructed the jury on the issue of consideration in accordance with the Dick standard. Because the jury returned a general verdict for the plaintiff, we must assume that the issue of the plaintiffs reasonableness was found in the plaintiffs favor. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982). Considering the evidence in the light most favorable to the plaintiff; Bound Brook Assn. v. Norwalk, supra; we find that the evidence supported a conclusion that the plaintiff entertained an honest and reasonable belief that the claim it agreed to forgo, in exchange for the defendant’s promise of reimbursement, was substantial. Dick v Dick, supra.

As the evidence recited above demonstrates, the plaintiff pursued its claim against the defendant for several months. During that period, the defendant’s representative never disparaged the validity of the plaintiff’s claim. The parties’ negotiations culminated in the agreement of June, 1983, under which the defendant would reimburse the plaintiff in exchange for the plaintiffs forbearance from asserting any claims it may have had against the defendant. The jury could have inferred from this evidence that the plaintiff had reasonable grounds for belief in the justice of the claim, and had asserted it in good faith. Id.; see, e.g., Carter v. Provo, 87 N.H. 369, 370,180 A. 258 (1935); cf. State ex rel. Marsh v. Lum, 95 Conn. 199, 203-204, 111 A. 190 (1920). Further, while we agree with the defendant that, as a general rule, the party bringing an action on a contract bears the burden of production on the issue of consideration; Dodge v. Burdell, 13 Conn. 169, 172 (1839); 29 Am. Jur. 2d, Evidence § 140; cf. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342,150 A.2d 597 (1959) (recital of consideration in written agreement is prima facie proof of consideration); we are not persuaded that the plaintiff was obligated at trial to raise the legal nonviability of the surrendered claim, and then present evidence that it had not been aware of that fact at the time it had entered into the reimbursement agreement with the defendant. We conclude, therefore, that the trial court did not err in denying the defendant’s motions for a directed verdict. Bound Brook Assn. v. Norwalk, supra.

II

The defendant next claims that the trial court erred in permitting the jury to award the plaintiff interest. The defendant concedes that this issue was not distinctly raised in the trial court; Practice Book § 315; but argues that we should review the claim because the trial court, in permitting the jury to determine whether interest was appropriate, impermissibly divested itself of an exclusive judicial function. Cf. Bishop v. Kelly, 206 Conn. 608, 617, 539 A.2d 108 (1988) (reviewing claim first raised on appeal that the trial court erred in permitting the jury to award multiple damages under General Statutes § 14-295).

The trial court instructed the jury that “if you find for the Plaintiff ... it may be entitled to statutory interest of ten percent per year, if that is your judgment. Accordingly, if your verdict is for the Plaintiff, you will determine whether . . . interest should be awarded to the sum .... If that is your judgment, then calculation of interest should be done by the Court clerk after the verdict is accepted.”

The defendant’s claim is meritless. “Our cases have recognized that interest, as an element of damages, is ... a matter within the jury’s province. [Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984)]; see also Rosenblatt v. Berman, 143 Conn. 31, 36, 119 A.2d 118 (1955); Lokes v. Kondrotas, 104 Conn. 703, 709,134 A. 246 (1926).” Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (applying General Statutes § 37-3a); see L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 51-52, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986); Williams v. Trans-Atlantic Motors, Inc., 6 Conn. App. 616, 617, 506 A.2d 1080 (1986); Nigro v. Hagearty, 33 Conn. Sup. 609, 611, 364 A.2d 241 (1976). The cases upon which the defendant relies for the proposition that “[t]he allowance of interest . . . is . . . primarily an equitable determination and a matter lying within the discretion of the trial court”; Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973); involved actions tried to the court rather than to the jury. Scribner v. O’Brien, Inc., 169 Conn. 389, 391, 406, 363 A.2d 160 (1975); Southern New England Contracting Co. v. State, 165 Conn. 644, 645, 664, 345 A.2d 550 (1974); Bertozzi v. McCarthy, supra, 464; see also Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985); Milgrim v. Deluca, 195 Conn. 191, 201, 487 A.2d 522 (1985); but see Leverty & Hurley Company v. Commissioner of Transportation, 192 Conn. 377, 380-81, 471 A.2d 958 (1984) (ascertainment of interest in eminent domain actions is judicial function). Moreover, we have previously held that, where the trial court instructed the jury that it may award the claimant interest, and no exception to this instruction was taken, the trial court’s instructions were not grounds for reversal on appeal. Rosenblatt v. Berman, supra, 36-37.

There is no error.

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

Callahan, J.,

dissenting. I disagree with the majority. I believe that the defendant’s request to charge and its exception to the charge were adequate to alert the trial court to the necessity of a jury instruction concerning the legal viability or lack thereof of the plaintiffs claim. Without such an instruction I fail to see how the jury could make a proper assessment of the reasonableness of the plaintiffs belief in the validity of that claim, or its good faith in pursuing it. The plaintiff was not a neophyte, but a business entity, apparently with at least some degree of sophistication in the area of claims. Under the circumstances, the jury, if properly instructed, might well have drawn an inference that the plaintiff knew its claim against the defendant was unenforceable and that it gave up nothing by agreeing to forego it. The failure to give such an instruction was error.

I respectfully dissent.

       Practice Book § 315 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       The plaintiff argues that the defendant has failed to brief this issue and, therefore, has abandoned it. Assignments of error neither briefed nor argued are deemed abandoned. “ ‘Assignments of error are also deemed to be abandoned where they are merely mentioned in the brief without any discussion of the particular issues mentioned.’ ” Stoner v. Stoner, 163 Conn. 345, 349, 307 A.2d 146 (1972); Varley v. Varley, 189 Conn. 490, 504, 457 A.2d 1065 (1983). Because the defendant’s brief discusses the substance of this claim, however, we do not deem it to be abandoned.

       The defendant argues in the alternative that it raised the issue of the court’s instructions on interest in its requests to charge. We have reviewed the defendant’s requests to charge and find nothing therein “covering” the issue of interest. Practice Book § 315.


text:
    Natural Harmony, Inc., et al. v. Arthur J. Normand
    (13517)
    Peters, C. J., Healey, Shea, Glass and Santaniello, Js.
    Argued January 11
    decision released May 9, 1989

      Joel M. Ellis, with whom, on the brief, was Martin P. Gold, for the appellant (defendant).

      Walter A. Twachtman, Jr., for the appellees (plaintiffs).
   Per Curiam.

This case involves an appeal from an order of specific performance of an option agreement for the sale and purchase of real estate that has been the subject of a previous action. The defendant makes a number of claims of error in the trial court’s equitable disposition of the plaintiffs’ specific performance claim. We find no error.

In the course of its comprehensive opinion, the trial court, Stengel, J., referred to the “file and the decisions” in the first action in accordance with the stipulation of the parties. “The construction of a judgment is a question of law for the court. . . . [In construing judgments,] ‘[e]ffect must be given to that which is clearly implied as well as to that which is expressed.’ ” Lashgari v. Lashgari, 197 Conn. 189,196-97,491 A.2d 495 (1985). The trial court, Stengel, J., determined that the trial court, Hale, J., in the first action had “found serious and substantial breaches of the [option] contract by the defendant [Normand].”

The trial court, Stengel, J., concluded that, “based on credible evidence, the defendant [Normand] in his overall actions and in thwarting the proposed closing [of title on the premises involved], was again displaying inequitable conduct,” as the trial court, Hale, J., had concluded in the earlier lawsuit. Moreover, it found, on the credible evidence that the defendant’s refusal to close was “unjustified,” that his actions to thwart the closing were “designed” and that his conduct constituted a breach of the option agreement. In arriving at its conclusions, the trial court, Stengel, J., also determined that the credible evidence demonstrated that the parties had dealt with each other in an individual capacity with the defendant dealing with Frank Hastings individually and never requiring or requesting corporate action.

“It is well settled that it is the province of the trier of fact to weigh the evidence presented and to determine its credibility and effect.” Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). This includes the right to draw reasonable inferences from that evidence. State v. Gonski, 155 Conn. 463, 467, 232 A.2d 483 (1967). An examination of the trial transcripts discloses that neither the defendant nor the attorney who had represented him during the first trial and for a time thereafter testified at the second trial. The plaintiff Frank Hastings as well as the attorney who had rep-

resented the plaintiffs at the first trial and for a time thereafter did testify at the second trial. Thus, from its analysis of the record of the first action and from the evidence at the second trial, the trial court, Stengel, J., concluded that the defendant “had elected to deal with Frank Hastings individually and [that] the defense of corporate performance has been waived.”

Having brought an action for specific performance, “the plaintiff invoked the equitable powers vested in the trial court.” Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984). “The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity.” Id.; Smith v. Hevro Realty Corporation., 199 Conn. 330, 345, 507 A.2d 980 (1986); H. McClintock, Handbook of the Principles of Equity (2d Ed. 1948) § 54.

Certain principles of equity, therefore, furnish guidance in our disposition of this appeal. “The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit . . . .” 1 J. Pomeroy, Equity Jurisprudence (5th Ed.) § 114; see Maruca v. Phillips, 139 Conn. 79, 82-83, 90 A.2d 159 (1952). Equity regards as done what ought to be done; Shippee v. Pallotti, Andretta & Co., 117 Conn. 472, 475,168 A. 880 (1933); 2 J. Pomeroy, supra, § 363; or “which ought to have been done.” Peninsula Methodist Homes & Hospital, Inc. v. Cropper, 256 Md. 728, 737, 261 A.2d 787 (1970); Langevin v. Hillsborough County, 114 N.H. 317, 320, 320 A.2d 635 (1974); 2 J. Pomeroy, supra, § 365. “Equity always looks to the substance of a transaction and not to mere form”; Connecticut National Bank v. Chapman, 153 Conn. 393, 397, 216 A.2d 814 (1966); and seeks “to prevent injustice.” Bump v. Stewart, Wimer & Bump, P.C., 336 N.W.2d 731, 736 (Iowa 1983); see 30 C.J.S., Equity §§ 30, 107.

“The principles of equity evolved as a necessity in order to obtain justice because the law by reason of its universality was deficient. Equity in its true and genuine meaning is the soul and spirit of all law, and positive law is construed by it and rational law is made by it. In this, equity is synonymous with justice. Equity depends essentially upon the particular circumstances of each individual case. That being so, there can be no established rules and fixed principles laid down for its application, without destroying its very existence, and reducing it to positive law. The nature of equity is to amplify, enlarge, and add to the letter of the law and every particular case stands upon its own circumstances. Story’s Equity Jurisprudence Vol. I, Ch. 1; Chitty’s Blackstone, Bk. I, Sec. 1.” (Emphasis in original.) Aetna Casualty & Surety Co. v. Jeppesen & Co., 440 F. Sup. 394, 403 (D. Nev. 1977).

This court has proclaimed repeatedly that it is not within our province to retry facts. Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 674, 546 A.2d 257 (1988); Coehlo v. Posi-Seal International, Inc., 208 Conn. 106, 124-25, 544 A.2d 170 (1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 524, 457 A.2d 656 (1983). A factual ruling of a trial court will not be disturbed unless it is clearly erroneous. § Practice Book § 4061; Commission on Hospitals & Health Care v. Stamford Hospital, supra; Smith v. Hevro Realty Corporation, supra.

The defendant’s claims of error in this appeal are challenges that are inextricably connected to the factual findings made by the trial court. Our careful examination of the record reveals no clear error in the trial court’s findings. The discretionary equitable ruling of the trial court is legally and logically sound. See Smith v. Hevro Realty Corporation, supra; Lees Curtain Co. v. Scinto, 13 Conn. App. 822, 822-23, 538 A.2d 1063 (1988).

There is no error and the case is remanded to the trial court, Stengel, J., with direction to set the date of the transfer of the real estate ordered.

       The first action, instituted in 1982, was brought by Natural Harmony, Inc., Wildlife, Inc., and Frank Hastings against Arthur Normand. Superior Court, judicial district of Tolland at Rockville, Docket No. 28317 (June 27,1985). Frank Hastings was the sole stockholder in Natural Harmony, Inc., and Wildlife, Inc. That action claimed damages, an accounting, a judgment claiming that the term of an option agreement, dated October 23, 1979, between Natural Harmony, Inc., and Normand be extended, a reformation of the option agreement or, in the alternative, an order that the premises be conveyed to the plaintiffs, attorney’s fees and costs, punitive damages, a declaration that the assignment of rents be declared void and any other relief that the court might deem just and proper. In that action, the defendant filed a counterclaim claiming damages and punitive damages, an injunction restraining the plaintiff Frank Hastings from entering on the premises, attorney’s fees and such other relief as the court might deem proper in law or in equity. The court, Hale, J., found “the issues for the plaintiffs on the complaint and for [the] plaintiffs on the defendant’s counterclaim.” See Sessa v. Barney, 130 Conn. 718,721, 37 A.2d 233 (1944); Wilson v. Cheshire Brass Co., 88 Conn. 118,122, 89 A. 903 (1914). No appeal was taken from that judgment.
      The second action, which is the subject of the present appeal, was instituted in 1986 by Natural Harmony, Inc., and Frank Hastings against Arthur Normand. Superior Court, judicial district of Tolland at Rockville, Docket No. 37154 (December 10, 1987). This action claimed injunctive relief, a decree compelling the defendant to transfer the premises pursuant to the option agreement of October 23,1979, by specific performance, or a decree vesting title to the premises in the plaintiffs, damages, punitive damages, attorney’s fees and costs, or a decree that the term of the option agreement be further extended and any other equitable relief deemed just and proper. The trial court, Stengel, J., concluded that the plaintiffs had established that specific performance was appropriate and it ordered specific performance. In ordering that the defendant convey the real estate that was the subject of the option agreement to the plaintiffs, it did so in accordance with a purchase price of $61,701.50 that was based on evidence adduced.

       Despite the claim of the defendant’s present counsel that this conclusion is clearly erroneous, our review of what is properly before us on this appeal requires us to reject this claim. Specifically, the defendant argues that there was no subject matter jurisdiction for the trial court to pass on any claims made by Frank Hastings individually; this claim is without merit on the law and the evidence. The trial court, Stengel, J., noted that the decsision of the trial court Hale, J., on the first action “held that the three plaintiffs therein, i.e., Natural Harmony, Inc., Wildlife, Inc. and Frank Hastings, for the purposes of his opinion were referred to in the singular” and that “[i]n [that] decision Judge Hale made no distinction between the corporation and Frank Hastings individually.”
      During the second trial, defendant’s counsel cross-examined Hastings concerning the basis of his claim that the first action was presented to that trial court, Hale, J., on the theory that the three plaintiffs in that case were really one party. Hastings not only referred to the statement of Judge Hale in his memorandum of decision that “[f|or purposes of this opinion the Court shall refer to the [three] plaintiffs in the singular,” but also to a later statement by Judge Hale, made in a written memorandum filed in the first action after the judgment in that case. Hastings read the following remarks of Judge Hale: “I reiterated to counsel that the judgment as originally filed correctly reflected my decision on the case particularly addressing myself to the fact that the plaintiffs in the case were from the outset regarded by the parties and their counsel, as I am sure the record will show, as a single plaintiff and interchangeable and coextensive in their relationship to this case and the trial was so conducted . . . thus the opinion reflects that fact.” An examination of the record in the first action shows that these remarks were made by Judge Hale in his memorandum of decision on the plaintiffs’ “Motion to Compel” compliance by the defendant with the judgment in the first action. This memorandum is highly significant coming as it did from the judge who had tried the earlier action and from whose judgment no appeal was ever taken. Thus, the trial court treated the three plaintiffs in that action in the singular for substantive purposes and not merely for convenience as the defendant’s present counsel claims. Frank Hastings was the sole stockholder in Natural Harmony, Inc., and Wildlife, Inc., both of which had been dissolved prior to the trial of the second action. “The equitable powers of the court can be invoked only by the real party in interest.” Connecticut Society of Architects, Inc. v. Bank Bldg. & Equipment Corporation, 151 Conn. 68, 74, 193 A.2d 493 (1963). The trial court correctly determined that Frank Hastings individually was the real party in interest.


author: Glass, J.

text:
    In re Tyvonne M.

    (13495)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 31
    decision released May 9, 1989

      Brian S. Carlow, assistant public defender, with whom, on the brief, was Ann M. Guillet, assistant public defender, for the appellant (respondent).

      Bruce A. Tonkonow, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Glass, J.

In this case we decide whether the common law defense of infancy applies to juvenile delinquency proceedings. The respondent appealed to the Appellate Court from an adjudication of delinquency, claiming that the trial court erred in denying his motion for judgment of acquittal. Pursuant to Practice Book § 4023, we transferred the case to ourselves. We find no error.

The relevant facts are not in dispute. The respondent was born on July 28, 1978. He lived with his mother, grandmother and two younger siblings in Hartford and attended the Clark Street School. On March 1, 1987, the respondent, who was eight years old, found a small pistol while he was playing in the school yard. He took the pistol and hid it under some papers in a hallway in building 38 of Bellevue Square. The following day he took the pistol to school and put it by a fence. He then went into the school and told another child about the pistol. Other children, including the victim, heard about the pistol. The victim told Tyvonne that she thought the pistol was a fake. After school, the respondent and the victim began arguing over whether the pistol was real. Several children examined the pistol and decided that it was a toy. The victim challenged the respondent again by saying, “Shoot me, shoot me.” The respondent exclaimed, “I’ll show you it’s real.” He then pointed the pistol at the victim, pulled the trigger, and fired one shot, which struck and injured her. The respondent then swore at the victim, shouted that he had been telling the truth, and ran from the scene. Shortly thereafter he was apprehended and taken into police custody.

On March 3,1987, the state filed a petition alleging five counts of delinquent behavior arising from the shooting. On that date, the trial court appointed a public defender to represent the respondent, conducted a detention release hearing, and released the respondent to the care of his maternal grandmother. The trial court also ordered a psychological evaluation of the respondent. The hearing on the delinquency petition commenced on June 3,1987. After the state completed its case on the first day, the respondent made an oral motion for judgment of acquittal, claiming that the state had introduced no evidence to rebut the common law presumption that children between the ages of seven and fourteen are incapable of committing a crime. The trial court reserved decision on the motion. On June 10,1987, the respondent filed a written motion for judgment of acquittal including the claim asserted in the oral motion. On June 22, 1987, the trial court granted the respondent’s motion for an examination to determine his competency.

When the hearing resumed on July 29, 1987, the report evaluating the respondent’s competency was filed and proof of his competency was waived. The trial court then denied the respondent’s motion for judgment of acquittal. At the completion of the hearing, the trial court made an adjudication that the respondent was a delinquent based on a finding that he had committed assault in the second degree in violation of General Statutes § 5Sa-60 (a) (2). The trial court dismissed the other counts. The trial court also ordered a preliminary investigation and a psychological evaluation of the respondent’s mother and grandmother. At the disposition hearing on October 26,1987, the trial court committed the respondent to the department of children and youth services (DCYS) for a period not to exceed four years.

On appeal, the respondent assigns as error the trial court’s denial of his motion for judgment of acquittal. He asserts that Connecticut’s juvenile justice legislation does not expressly or implicitly eliminate the common law infancy defense from delinquency proceedings. He further argues that because the original goals of rehabilitation and remediation in the juvenile justice system have not been attained, there is no justification for excluding the infancy defense from juvenile delinquency proceedings. Consequently, he claims, the trial court erred in not requiring the state to rebut the presumption that he was incapable of committing the offense underlying the delinquency adjudication. We are not persuaded.

I

The respondent argues that, even though the legislature may abolish common law rules; Pierce v. Albanese, 144 Conn. 241, 250,129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957); statutes in derogation of the common law must be strictly construed. See, e.g., State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986). He asserts that because the juvenile justice legislation is silent with respect to the common law infancy defense, the common law presumptions must apply to delinquency proceedings. Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978). The state argues, however, that Connecticut’s juvenile justice legislation implicitly abolishes the defense and, further, that application of the defense in delinquency proceedings would frustrate the legislation’s remedial objectives.

“Down through the centuries the law has attempted to save offending children from the rigidity of the criminal law applicable to adults, but the history of the law has disclosed that such attempts were only sporadic and in many instances accomplished very little. As early as the fifth century B.C., the Twelve Tables (c. 488-451) made the theft of crops at night a capital crime, but a youthful offender could escape with a fine double the value and a flogging. The Romans promulgated the defense of infantia which provided absolute immunity for those children who were incapable of speech. Puberty was established as the upper limit of eligibility for mitigated treatment. Between infancy and puberty, criminal responsibility depended on a combination of three factors—the proximity of age to either infancy or puberty, the nature of the offense, and the mental capacity of the offender.

“By the seventeenth century, the Roman classification of criminal responsibility became the basis of the English common-law approach, so that children under seven were incapable of committing a crime while those between seven and fourteen were presumed incapable. Such presumption however was rebuttable by strong and clear evidence. Those [fourteen and over] were subject to the same criminal laws as were adults.” D. Frauenhofer, A. Hart, J. Keefe, P. May, E. Sheehy, & T. Wilson, “Practice and Procedure of the Juvenile Court for the State of Connecticut,” 41 Conn. B. J. 201, 206 (1967); see 1 W. LaFave & A. Scott, Substantive Criminal Law § 4.11 (a); see generally A. Kean, “The History of the Criminal Liability of Children,” 53 L.Q. Rev. 364 (1937); A. Walkover, “The Infancy Defense in the New Juvenile Court,” 31 UCLA L. Rev. 503 (1984). In a case decided after the enactment of Connecticut’s juvenile justice legislation, we observed in dictum that the common law principles had applied to criminal prosecutions of children in Connecticut. State v. Elbert, 115 Conn. 589, 593, 162 A. 769 (1932); 2 Z. Swift, Digest p. 361.

The common law defense of infancy, like the defense of insanity, differs from the criminal law’s requirement of “mens rea” or criminal intent. The law recognized that while a child may have actually intended to perform a criminal act, children in general could not reasonably be presumed capable of differentiating right from wrong. See A. Walkover, supra, 551. The presumptions of incapacity were created to avoid punishing those who, because of age, could not appreciate the moral dimensions of their behavior, and for whom the threat of punishment would not act as a deterrent. W. LaFave & A. Scott, supra. Although a number of states have codified the common law rule by statute; see, e.g., Ariz. Rev. Stat. Ann. § 13-501; Minn. Stat. § 609.055; Or. Rev. Stat. Ann. 161.290; Wash. Rev. Code Ann. § 9A.04.050; W. LaFave & A. Scott, supra, § 4.11 (b); there is no statutory infancy defense in Connecticut. Cf. General Statutes § 53a-13 (lack of capacity due to mental disease or defect is affirmative defense).

The concept of juvenile delinquency did not exist at common law. In most states, including Connecticut, legislation was enacted that rendered children under a certain age liable as “delinquents” for committing acts that, if committed by an adult, would be criminal. Public Acts 1921, c. 336, § 1; A. Walkover, supra, 503 n.l. Chapter 336 of the 1921 Public Acts, which established Connecticut’s juvenile justice system, is presently codified in chapter 815t of the General Statutes. Even though the Superior Court is Connecticut’s trial court of general jurisdiction, and juvenile matters are heard in the Superior Court, juvenile proceedings are conducted separately from all other business of the Superior Court. Delinquency is defined in General Statutes § 46b-120 as follows: “[A] child may be found ‘delinquent’ (1) who has violated any federal or state law or municipal or local ordinance ... or (2) who has violated any order of the superior court . . . . ” An important feature of the legislation since its inception is presently expressed in General Statutes § 46b-145, which provides: “No child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127.” See Public Acts 1921, c. 336, § 18.

Shortly after the creation of the juvenile justice system, we addressed the issue whether a delinquency proceeding is tantamount to a criminal prosecution. Cinque v. Boyd, 99 Conn. 70,121 A. 678 (1923). In that case, we stated that “the Act [creating the juvenile justice system] ... is not of a criminal nature . . . . ” Id., 89. “The Act is but an exercise by the State of its . . . power over the welfare of its children,” and a juvenile subjected to delinquency proceedings “[is] tried for no offense,” but “[comes] under the operation of the law in order that he might not be tried for any offense.” Id., 87; see Public Acts 1921, c. 336, § 3. Since the Boyd case, we have on several occasions recognized that, consistent with § 46b-145, juvenile proceedings are fundamentally different from criminal proceedings. In re Christopher V., 207 Conn. 270, 274, 540 A.2d 700 (1988); Anonymous v. Norton, 168 Conn. 421, 424-25, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); In re Appeal of Bailey, 158 Conn. 439, 445,262 A.2d 177 (1969); Tracy v. Johnson, 156 Conn. 630, 632, 239 A.2d 477 (1968).

The rehabilitative nature of our juvenile justice system is most saliently evidenced by the statutory provisions pertaining to the disposition of delinquent juveniles. Under General Statutes § 46b-134, the trial court may not render a disposition of the case of any delinquent child until the trial court receives from the probation officer assigned to the case a comprehensive background report on the child’s characteristics, history and home life. The disposition of a child found delinquent for a serious juvenile offense may be made only after the court receives a complete evaluation of the child’s physical and psychological health. General Statutes § 46b-134; see Practice Book § 1037 (1) (no disposition may be made until § 46b-134 report submitted to court). General Statutes § 46b-140 (a) provides in part that upon an adjudication of delinquency, the trial court may place the juvenile “in the care of any institution or agency which is permitted by law to care for children, order the child to remain in his own home or in the custody of a relative or any other fit person subject to the supervision of the probation officer or withhold or suspend execution of any judgment.” The court may also order the juvenile to perform public service or to make restitution when appropriate, provided that the child and his parent or guardian consent to such an order. General Statutes § 46b-140 (a).

Significantly, commitment of the child to DCYS may be made only if the court finds that “its probation services or other services available to the court are not adequate for such child . . . .” General Statutes § 46b-140 (b). Prior to any such commitment, however, the court must “consult with [DCYS] to determine the placement which will be in the best interest of such child.” General Statutes § 46b-140 (b). When the trial court determines that a commitment must be made, it may commit the child to DCYS for an indeterminate period not to exceed two years, or in the case of a child found delinquent for committing a serious juvenile offense, for an indeterminate period not to exceed four years. General Statutes § 46b-141 (a). DCYS may petition for an extension of the commitment of a child originally committed for two years. An extension may not exceed an additional two years, and may only be ordered when, after a hearing, it is found to be in the best interests of the child. General Statutes § 46b-141 (b).

Several other provisions of the General Statutes and the Practice Book delineate fundamental distinctions between delinquency and criminal proceedings. For example, Practice Book § 1034 (1) provides that a juvenile delinquency hearing “shall not be conducted as a criminal trial; the proceedings shall be at all times as informal as the requirements of due process and fairness permit.” Further, unlike the records of convicted criminals, the records of juvenile delinquency proceedings generally are confidential. Compare General Statutes c. 961á with General Statutes § 46b-124.

“In ascertaining legislative intent, we may look to the history of the statute, the policy underlying it and the circumstances which brought about its enactment. ... In construing a statute, common sense must be used and we must assume that the legislature intended to accomplish a reasonable and rational result. . . . A statute, of course, is not to be interpreted to thwart its purpose. . . . ‘We can best reach the meaning here, as always, by recourse to the underlying purpose . . . .’ ” (Citations omitted.) Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).

It is clear from our analysis that the purpose of the comprehensive statutory treatment of “juvenile delinquents” is clinical and rehabilitative, rather than retributive or punitive. As we recently observed in In re Christopher V., supra, 274, “[t]he objective of juvenile court proceedings is to ‘determin[e] the needs of the child and of society rather than adjudicate] criminal conduct. The objectives are to provide measures of guidance and rehabilitation . . . not to fix criminal responsibility, guilt and punishment.’ Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); but see In re Luis R., 204 Conn. 630, 634-35, 528 A.2d 1146 (1987). Thus the child found delinquent is not perceived as a criminal guilty of one or more offenses, but rather as a child in need of guidance and rehabilitative services.” In effect, the statutes regulating juvenile misconduct represent a system-wide displacement of the common law.

With the enactment of juvenile justice legislation nationwide, several courts have addressed the issue whether the infancy defense applies to delinquency proceedings. Most have held that, in the absence of legislation codifying or adopting the defense, incapacity is not a defense in delinquency proceedings. See, e.g., Jennings v. State, 384 So. 2d 104, 106 (Ala. 1980); Gammons v. Berlat, 144 Ariz. 148, 151-52, 696 P.2d 700 (1985); State v. D.H., 340 So. 2d 1163,1165 (Fla. 1976); In the Matter of Robert M., 110 Misc. 2d 113,116, 441 N.Y.S.2d 860 (1981); In re Michael, 423 A.2d 1180,1182 (R.I.1981); In the Matter of Skinner, 272 S.C. 135,137, 249 S.E.2d 746 (1978); see also W. LaFave & A. Scott, supra, § 4.11 (c). These courts observe that because a delinquency adjudication is not a criminal conviction, it is unnecessary to determine whether the juvenile understood the moral implications of his or her behavior. See, e.g., Gammons v. Berlat, supra, 151; In re Michael, supra, 1183. In addition, some decisions recognize that the defense would frustrate the remedial purposes of juvenile justice legislation. See, e.g., Jennings v. State, supra, 105-106; State v. D.H., supra.

Because Connecticut’s juvenile justice system is designed to provide delinquent minors with guidance and rehabilitation; In re Steven G., 210 Conn. 435, 443, 556 A.2d 131 (1989); In re Christopher V., supra; we agree with the courts that hold that the common law infancy defense, created to protect children from being punished as criminals, has no place in delinquency proceedings. See Gammons v. Berlat, supra; In re Michael, supra, 1183; In the Matter of Skinner, supra; see also W. LaFave & A. Scott, supra, § 4.11 (c). We also agree that the legislature could decide that the infancy defense would unnecessarily interfere with the state’s legitimate efforts to provide structured forms of guidance for children who have committed acts of delinquency. See Jennings v. State, supra; State v. D.H., supra. It could conclude that the defense inevitably would exclude those children most in need of guidance from a system designed to instill socially responsible behavior. Jennings v. State, supra. To construe the legislature’s silence as indicating an intent to preserve the infancy defense in delinquency proceedings is unwarranted in light of the legislation’s obvious and singular remedial objectives. Gentry v. Norwalk, supra. We are not persuaded that recognition of the defense would advance the interests of either the child or society.

II

Relying on a number of decisions in other states, however, the respondent argues that the rehabilitative objectives of juvenile justice have become defunct, and cannot justify excluding the infancy defense from delinquency proceedings. Most of the decisions holding the infancy defense applicable to juvenile proceedings have been based on specific legislation adopting the defense, and therefore are irrelevant to the present case. See, e.g., In re Gladys R., 1 Cal. 3d 855, 863, 464 P.2d 127, 83 Cal. Rptr. 671 (1970); K.M.S. v. State, 129 Ga. App. 683, 685, 200 S.E.2d 916 (1973); State v. Q.D., 102 Wash. 2d 19, 23, 685 P.2d 557 (1984); State v. S.P., 49 Wash. App. 45, 46, 746 P.2d 813 (1987).

Some courts, however, have held that even absent pertinent legislation, the common law infancy defense applies to delinquency proceedings. In re William A., 313 Md. 690, 698-99, 548 A.2d 130 (1988); In the Matter of Andrew M., 91 Misc. 2d 813, 815-16, 398 N.Y.S.2d 824 (1977); Commonwealth v. Durham, supra, 541-42. These courts advance the notion that the United States Supreme Court decisions in Kent v. United States, supra; Inre Gault, 387 U.S. 1, 87 S. Ct. 1428,18 L. Ed. 2d 527 (1967), and In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), reflect the evolving reality that the true objectives of juvenile justice legislation are not rehabilitation and treatment, but accountability and punishment. In re William A., supra, 698; Commonwealth v. Durham, supra; A. Walkover, supra, 517-23.

Kent, Gault and Winship establish that the state may not suspend fundamental protections of due process in juvenile proceedings. A particular procedure must be followed if it is required as a matter of “fundamental fairness.” McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); In re Steven G., supra. The precise principle emerging from Kent and Gault is that states may not rely on superficial exhortations of “rehabilitation” to justify procedural arbitrariness in delinquency proceedings. McKeiver v. Pennsylvania, supra, 541; Kent v. United States, supra, 555-56. As the court observed in Gault, “[jjuvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” In re Gault, supra, 18; see also In re Winship, supra, 364 (application of reasonable doubt standard to juvenile delinquency proceedings ensures integrity of fact-finding process).

The respondent does not argue that the United States Supreme Court’s juvenile decisions require the common law incapacity defense in delinquency proceedings as a matter of fundamental constitutional fairness. Cf. Jennings v. State, supra, 106. Nor does he suggest that the exclusion of the incapacity defense introduces procedural arbitrariness. Instead, the respondent gleans from those cases the proposition that since the juvenile justice system punishes rather than rehabilitates, there is no good reason not to recognize incapacity as a defense. We are not persuaded, however, that Kent and Gault warrant the proposition that the respondent discerns.

We acknowledge that the United States Supreme Court has opined that the rehabilitative goals of the various state juvenile courts have often not been attained. McKeiver v. Pennsylvania, supra, 543-44; In re Gault, supra, 22. The court has made it quite clear that states may not deny juveniles fundamental due process rights simply by labelling delinquency proceedings “civil,” or by asserting that the purpose of delinquency proceedings is rehabilitative. In re Gault, supra, 30; see also In re Steven G., supra; Anonymous v. Norton, supra, 425. Thus, the parens patriae doctrine does not support inroads on basic constitutional guarantees simply because a state claims that its juvenile justice system is “rehabilitative” rather than “punitive.” The United States Supreme Court, however, has expressly refused to hold that the rehabilitative goals of the various systems of juvenile justice may under no circumstances justify appropriate differential treatment of a child adjudicated a delinquent. McKeiver v. Pennsylvania, supra, 550; In re Gault, supra; Kent v. United States, supra, 562. Further, the court has never suggested that such differential treatment, based on the juvenile justice systems’ fundamentally nonpunitive objectives, is intrinsically illegitimate. “We are reluctant to say that, despite disappointments of grave dimensions, [the juvenile justice system] does not hold promise, and we are particularly reluctant to say . . . that the system cannot accomplish its rehabilitative goals. So much depends on the availability of resources, on the interest and commitment of the public, on willingness to learn, and on understanding .... We are reluctant to disallow the States to experiment further and to seek in new and different ways the elusive answers to the problems of the young . . . . ” McKeiver v. Pennsylvania, supra, 547.

We do not discern in Kent and its progeny an abandonment of the rehabilitative focus of juvenile justice. The respondent has not presented us with any grounds for concluding that the rehabilitative objectives of Connecticut’s juvenile justice system are contradicted in practice. We therefore decline to adopt the somewhat cynical view expressed by some writers that the ideals of the juvenile justice system are now bankrupt, and have necessarily succumbed to the corrosive effects of institutionalization. See A. Walkover, supra.

Further, we are not persuaded by the respondent’s argument that the statutory treatment of juveniles who commit “serious juvenile offenses” requires a conclusion that there is no genuine difference between juvenile and criminal proceedings. The four year maximum commitment term for serious juvenile offenders under General Statutes §§ 46b-140 and 46b-141 certainly contemplates the possibility of a serious restriction on the juvenile’s liberty. But as we have already observed, any commitment order must be predicated on a determination that other options not involving commitment are inadequate to address the child’s needs. General Statutes § 46b-140 (b). In addition, placement of the child in a program or facility must be based on the child’s best interests. General Statutes § 46b-140 (b). We cannot infer from these provisions a legislative intent to inflict retribution on the serious juvenile offender.

Finally, we reject the respondent’s argument that the common law presumption should apply in this case because the offense charged was a serious juvenile offense. We acknowledge that the commission of a serious juvenile offense is a prerequisite to the transfer of a juvenile case to the Superior Court criminal docket. General Statutes §§ 46b-126 and 46b-127. Another prerequisite to such a transfer, however, is that the child must have committed the offense after attaining the age of fourteen. General Statutes § 46b-126 and 46b-127. In the present case, the respondent was eight years of age at the time of the predicate offense.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 46b-120 provides in pertinent part: “[A] child may be found ‘delinquent’ (1) who has violated any . . . state law . ”

       The competency evaluation, dated July 13,1987, was conducted by the diagnostic clinic of the department of mental health. The report concluded that it was the unanimous opinion of the clinical team that the respondent was able to understand the delinquency proceedings.

       General Statutes § 53a-60 (a) (2) provides in pertinent part: “A person is guilty of assault in the second degree when . . . (2) with intent to cause physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or a dangerous instrument.” Under General Statutes § 46b-120, assault in the second degree in violation of § 53a-60 is included in the category of offenses designated as a “serious juvenile offense.”

       The respondent’s attorney filed a petition with the trial court seeking an adjudication that the respondent was an “uncared for” child. See General Statutes § 46b-120 (uncared for child defined as one “who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires”). The trial court found that the respondent was an uncared for child. In addition to the four year commitment based on the delinquency adjudication, the trial court ordered a commitment of eighteen months based on the adjudication that the respondent was an uncared for child.

       General Statutes § 46b-122 provides: “All matters pending in the juvenile court on July 1,1978, and all matters brought on or after July 1,1978, which matters are juvenile matters, as defined in section 46b-121, shall continue to be kept separate and apart from all other business of the superior court as far as is practicable, except matters transferred under the provisions of sections 46b-126 and 46b-127, which matters shall be transferred to the regular criminal docket of said superior court. Any judge hearing a juvenile matter shall, during such hearing, exclude from the room in which such hearing is held any person whose presence is, in the court’s opinion, not necessary. No such hearing shall be held in a room regularly used for the transaction of criminal business.”

       The exceptions refer to juvenile cases subject to transfer to the regular criminal docket. See General Statutes §§ 46b-126 and 46b-127 (providing, inter alia, that juvenile subject to transfer must have been fourteen years of age at time underlying offense was committed).

       In the present case, the respondent has not challenged the trial court’s factual basis for committing the respondent to DCYS for four years.

       The respondent argues that the rehabilitative purposes of the statutory scheme would be served in the present case without an adjudication of delinquency because the trial court also adjudicated the respondent an “uncared for” child, and made an appropriate disposition thereon. See footnote 4, supra. We disagree with the respondent, however, that an adjudication of “uncared for” status presents the trial court with “an almost identical range of dispositional options.” Compare General Statutes § 46b-140 and 46b-141 with General Statutes § 46b-129. Further, under General Statutes § 46b-120, it is obvious that the two adjudications do not necessarily overlap. The statutory scheme does not require the trial court to dismiss a delinquency petition, or to suspend a disposition on an adjudication of delinquency, whenever the court renders a concurrent adjudication of “uncared for” status. We decline to create such a requirement by judicial ukase.

       Nothing in this opinion should be construed to deter the legislature from considering the desirability of a floor for such juvenile proceedings in recognition of the fact that the clinical and rehabilitative needs of a four or eight year old are different from those of a fourteen or fifteen year old.