Abate v. Barkers of Wallingford, Inc.

• Decision Date: 10 April 1967
• Docket Number: No. 69718,69718
• Citation: 229 A.2d 366,27 Conn.Supp. 46
• Parties: , 4 UCC Rep.Serv. 310 Ruth ABATE et al. v. BARKERS OF WALLINGFORD, INC., et al.
• Court: Connecticut Court of Common Pleas

Page 366

229 A.2d 366

27 Conn.Supp. 46, 4 UCC Rep.Serv. 310

Ruth ABATE et al. v. BARKERS OF WALLINGFORD, INC., et al.

No. 69718.

Court of Common Pleas of Connecticut, New Haven County, at New Haven.

April 10, 1967.

Sachs, sachs, Giaimo & Sachs, New Haven, for plaintiffs.

Schatz, Weinstein & Seltzer, Hartford, for defendant Barkers of Wallingford, Inc.

Wiggin & Dana, New Haven, for defendant Endicott Johnson Shoe Co.

MIGNONE, Judge.

The third-party defendant herein has demurred to the second and third counts of the plaintiffs' amended complaint on the ground that on the face of this complaint the claims alleged are barred by the applicable statutes of limitations.

The original complaint was brought against the defendant Barkers of Willingford, Inc., and was returned on the first Tuesday of December, 1963. It alleged a breach of warranty in the sale of a pair of defective ice skates purchased by the named plaintiff. It also alleged negligence in failing properly to inspect the condition of the skates. Thereafter, on September 16, 1966, the defendant Barkers of Willingford, Inc., filed a third-party complaint, pursuant to General Statutes § 52-102a, enacted at the February, 1965, special session as Public Act No. 417, against the third-party defendant Endicott Johnson Shoe Company, the manufacturer of the skates. Following this, the plaintiffs filed their 'Amended Complaint in Accordance With Public Act No. 417' on January 9, 1967, setting out a second count against the defendant Endicott Johnson Shoe Company, alleging a breach of warranty in the sale of the ice skates. A third count alleges negligence by the third-party defendant in defectively manufacturing, and failing properly to inspect, the skate in issue. The third-party defendant has demurred as set out above, presenting the issue whether the applicable statutes of limitations bar the actions set out in these two counts.

The plaintiffs argue that § 52-102a is remedial legislation and should be liberally construed. The third-party defendant contends that it affirmatively appears from the complaint itself that the action is barred by the applicable statutes of limitation.

Although the plaintiffs deny this, it is patent that all the facts necessary to a determination of whether the plaintiffs' complaint against the third-party defendant is timely and sustainable are apparent on the record. The raising of the issue by demurrer is, therefore, proper. Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 127 A.2d 814.

The demurrer to the third count, which sounds in negligence, claims that § 52-584 is the applicable Statute of Limitations. This section limits the bringing of an action to recover damages for injury to the person caused by negligence to a period within one year from the date when the injury is first sustained. Since the personal injury to the named plaintiff was sustained on January 6, 1963, under the demurrer the action would be outlawed.

The question, therefore, is whether § 52-102a, under which the plaintiffs are proceeding, operates to prevent the barring of this one-year statute. Section 52-102a was enacted at the February, 1965, session, and the pertinent portion in issue here provides: 'The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff.' A reading of the act as a whole makes it clear that it does not state that it shall operate retrospectively.

The plaintiffs argue that this act is remedial in nature and that by allowing the bringing of this action beyond the period of the one-year Statute of Limitations no substantive rights would be violated. As is brought out in Massa v. Nastri, 125 Conn. 144, 148, 3 A.2d 839, 120 A.L.R. 939, '(a) legal exemption from or limitation upon liability stands on quite as high ground as a right of action. If the law at the time the right of action accrued is such that a plaintiff may claim it as a vested right, equally a defendant has an equivalent vested right to an exemption. If the effect of a construction contended for 'would be to impose a liability for a past occurrence where none existed at the time, or, what is the same thing, take away a legal defense available at the time, it is to be avoided." See also E. M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525. As is further brought out in Demarest v. Zoning Commission, 134 Conn. 572, 574, 59 A.2d 293, 294, '(w)hether a statute will be given a retrospective effect presents primarily a question of legislative intent, and where the legislature makes no specific provision, as it did not in the law before us, the matter becomes one of presumed intent. It is a general rule that, in so far as a new law might affect substantive rights, the legislature, unless it has indicated a contrary intent, is presumed to have intended that it should not apply to pending proceedings, but that where its terms are general and affect only procedural matters it applies in all proceedings, whether pending or not.'

An attempt to ascertain the intent of the legislature has been fruitless. The transcript of proceedings in the senate on substitute for Senate Bill 1202, entitled 'An Act Permitting Defendants, in a Civil Action to Implead a Person Who May Be Liable to Him for All or Part of the Plaintiff's Claim,' shows only that there was a favorable report of the joint standing committee on judiciary and governmental functions. The chairman of the committee moved its acceptance, stating: 'Mr. President, I move acceptance of the committee's favorable report and passage of the bill. The bill would bring into our procedure the impleading process of the federal procedure. It's a worthwhile device to have on occasion and I think it will improve our court procedure.' 11 S.Proc., pt. 6, Feb. 1965 Spec.Sess., p. 1977. In the house, the transcript of the proceedings in connection with this same bill shows only that its acceptance was moved on the basis of the committee's favorable report, and the movant stated: 'Mr. Speaker, this Bill is designed to in effect to speed up the calendar by permitting impleading and cross complaints, so that all of the rights of parties to a specific occurrence can be settled in one lawsuit. I think it's a good Bill and should pass.' 11 H.R.Proc., pt. 7, Feb. 1965 Spec.Sess., p. 3335. The title of the act itself seems to indicate that its primary purpose is to permit a defendant in a civil action to implead a person who may be liable to him for all or part of the plaintiff's claim. The act itself provides that the third-party defendant 'shall have available to him all remedies available to an original defendant.'

The court must conclude that § 52-102a does not act to defeat the barring by the one-year Statute of Limitations the claim of personal injuries due to the negligence of the third-party defendant as set out in the third count.

The third-party defendant has also demurred to the second count, which sets up a claim of breach of implied warranty that the ice skates in question were fit for the purpose of ice skating. The count thereafter alleges that the named plaintiff was caused to crash and fall upon the ice because 'said ice skates were in a defective and dangerous condition in that the skating blade of the right shoe was improperly and defectively welded, connected, fastened, secured and attached to the heel plate, so-called, of the right skate shoe.' The question raised by the demurrer to this count is whether the Statute of Limitations as to tort actions, § 52-577, setting up a three-year limitation of action, applies, or whether § 42a-2-725 of the Uniform Commercial Code, setting up a four-year limitation commencing from the date the cause of action has accrued, is the applicable statute.

The issue is thus presented as to whether this is a tort action,...