Norwich bulletin., 1921-08-13

The supreme courts opinion ordering a new trial in the case of Mae Richmond vs. the city of Norwich was filed Friday afternoon with the clerk of the superior court in this city. The new trial is or dered because of error on the part of the superior court in admitting certain parts of the testimony offered at the trial AL though the supreme court opinion, which was written by Justice Wheeler, finds er- TOT and orders new trial. the $25,000 damages awarded the plaintiff are not found excessive. "The damages awarded are unusually large for this jurisdiction, but if the jury found these facts proven, and they reasonably might have done so, we cannot hold the damages awarded to be excessive" says Justice Wheeler in the opinion,
 The opinion rules that the evidence of Edward McNamara, one of the plaintiffs witnesses, in regard to the mental char acteristics and disposition of Matri, the guard who shot Miss Richmond, should not have been admitted by the superior court The ruling admitting this evil dence was erroneous" says the opinion. It cannot be held to have been harm less on the contrary, this evidence was quite likely to have a potent influence in the making of the verdict, as the court in it's charge referred to the evidence of McNamara with emphatic detail.'
 In part, the opinion, which covers score of typewritten pages, is as f1lfows:
 Error is assigned in the failure of the court to submit to the jury the issue of whether the defendant, city was engaged in the performance of a governmental duty at the time Matri,, the guard at the reservoir shot plaintiff. If 1t be as- sumed that the defendants are right in their position that either rde, second de- fense was improperly eliminated from the case by demurrer or if not that the issue of governmental duty did not need to be affirmatively alleged or that sufficient evidence upon this subject was introduced : to make it necessary to submit this question to the jury in accordance with defendants requests we do not think ] that the trial court committed harmful | error in failing to make such submission. When a municipality is engaged in the performance of a public duty for the pub , lie benefit and not for it's own corporate | profit, it will be immune from liability for injuries done in the performance of | such acts. The defendant city was not engaged upon such a duty. at the time ! the plaintiff suffered her injuries. In col 1 lecting, distributing and vending water | it was engaged in performance of acts l done in the management of its property as rights for it's own corporate benefit | or profit and that of it's inhabitants and for injuries caused by it through it's negligent acts it cannot plead govern mental immunity, so that upon the con ceded facts in this case the question of governmental immunity did not arise in i the case and we have no occasion to consider the ruling upon the demurrer, or the other claims made by the defend ants upon this case
 The case of Hourigan vs Norwich IT Conn, 35S, 364, is conclusive upon this
 question Ground 4 of the demurrer tc the complaint is that case raises the pre- else point and was overruled and that
 ruling upheld aMd this accords with the best considered authority.
 Complaint is made by the appellant!
 of the charge, And the Board of Wate1 Commissioners had the power to emplo!
 the superintendent with the powe
 herein before set forth" The claim O
 the defendants is that the acts of Matr i were not acts of an authorized agen of the city since are act of Burnap ii employing Matri as a guard were un
 authorized by the board of water com
 he power to preserve, protect and manag' : the water supply by the employment c
 a guard without the approval of tn
 court of common C%uncll. The superin
 tendent's duties were particularized il
 the evidence by having the finding as t
 them in Hourigan vs Norwich supr1
 incorporated. This specifies that the su
 perintendent has authority to hire ant ' discharge all labor. Whether the boar of water commissioners had authority t authorize the superintendent to emplo
 Matri for the purpose of guarding tn reservoir depends upon whether tn charter gives to it t1is power and it , of course esential that the mode of ex ercise of the power prescribed be fol ' lowed.
 The defendants rely upon the provisio
 in Sec. S5 of the charter that the boar : slall make bylaws or regulations fo the preservation, protection and manage ment of the water works and that thee b shall be binding when approved of b the court of common council So far a the record discloses the council has neve
 approved of any such bylaws or reguls tions. The logic of the defendants clail @ would compel the position that the boar y had no authority to maintain the wats r works and to provide help in it's cal e and maintenance except with the appro,
 al of the council. But the reading q all of the provisions of the charter show l. that the legislature did not contempla h so impracticable management and ol Q eration of the water works as this cour.
 would involve. Sec. 7s provides that the if "shaIl be forever maointained by the sa f board of water commissioners under u f direction of the court of common counc '55 of said city" The council may dire but the duty of maintenance is upon u e board.
 7, A number of rulings on evidence we II excepted to.
 - 1. The plaintiffs' witness Pitcher te
 tifed as to having taken several phot 10 graphs of the locus. On cross examin y tion he was asked whether he had talk l. other photographs showing fence exten '- ing across the road and also photograp
 ot other permanent objects in the roa
 way. This appears to have been legitir
 ate cross examination but it's exclusi
 did not materially harm the defendan If They could have secured these phot
 graphs and Nid them in evidencd n. they had deemed them of importance e the case.
 o- ?. The same witness was on redirc ?. asked to describe the reservoir as
 it's surroundings and attractiveness I the people. He replied that he and othe ,o frequently visited the reservoir to see 1' and take in the scenery. Defendaf -, oDJected 10 the evidence and asked ,a have their exception noted. The co,
 declined to permit the exception to
 noted because no objection had be ,H noted. The trial court was in error s it's understanding of the record. I
 answer was irrelevant and irrespons 1H H and should have been stricken out. F s the subject matter is too ineonsequent 4O to predicate harmful error upon.
 The plaintiffs direct examiation p n0 ceeded as follows:
 Q. You are not able to earn anythi