Baker v. Baningoso.

• Decision Date: 26 February 1948
• Citation: 134 Conn. 382,58 A.2d 5
• Parties: BAKER v. BANINGOSO.
• Court: Connecticut Supreme Court

134 Conn. 382

58 A.2d 5

BAKER

v.BANINGOSO.

Supreme Court of Errors of Connecticut.

Feb. 26, 1948.

Appeal from Superior Court, Fairfield County; Alcorn and Shea, Judges.

Action brought to the superior court by Leo F. Baker, administrator of the estate of Muriel Baker, deceased, against Anna L. Baningoso, administratrix of the estate of Joseph Baningoso, deceased, for death of plaintiff's intestate alleged to have been caused by the negligence of the defendant's intestate. From a judgment for defendant rendered when plaintiff failed to plead further when demurrer to complaint and to amended complaint was sustained, plaintiff appeals.

No error.

John R. Cuneo and Frederick F. Lovejoy, Jr., both of South Norwalk, for appellant (plaintiff).

John Keogh, Jr., of South Norwalk (John Keogh and George F. McKendry, both of South Norwalk, on the brief), for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON, and INGLIS, JJ. (Judge ERNEST A. INGLIS of the superior court sat for Judge ELLS.)

JENNINGS, Judge.

Plaintiff's and defendant's decedents were both killed in an automobile accident on February 6, 1945. Plaintiff's decedent was a passenger in a car owned by defendant's decedent. The plaintiff brought suit against the defendant by writ dated July 30, 1946. A demurrer to this complaint, as amended May 29, 1947, was sustained on the ground that the action was not brought within one year from the time of the accident causing the death, as provided in General Statutes, Sup.1945, § 1005h. The decision was correct unless the plaintiff can establish that other controlling statutory provisions save his cause of action.

A summary of the material allegations of the complaint, admitted by the demurrer, is necessary to determine the question. On January 19, 1946, within the year, the plaintiff brought action against the defendant. The defendant pleaded in abatement on technical grounds, but no action was taken on the plea. On May 13, 1946, the plaintiff presented his claim to the defendant as administrator and it was promptly disallowed. On May 15, 1946, the plaintiff brought another action for the same cause which was abated on a plea by the defendant on the ground that there was another action pending. On July 22, 1946, the plaintiff withdrew his first action, and on July, 30, 1946, instituted that at bar.

The plaintiff's first claim is that § 1005h is modified by General Statutes, § 4918, which provides that no suit shall be brought against the administrator of an estate within the time allowed for the presentation of claims unless notice of the total or partial disallowance of the claim shall have been given by the administrator. He argues that the death of the defendant's decedent left the plaintiff without anyone to sue and that § 4918 prevents suit from being brought until the requisite formalities have been fulfilled.

No Connecticut case has been cited or found which passes on this precise question. In Radezky v. Sargent & Co., 77 Conn. 110, at page 113, 58 A. 709, 710, after referring to the legislative history of the statute which is now § 1005h, it is held: ‘The language of the statute is clear and explicit, containing no exception and suggesting no qualification. Neither the failure of the statutory beneficiaries of the liability created to secure the appointment of an administrator, nor the failure of an administrator to commence an action, affect the time limit fixed by statute.’ In other words, the time required for the appointment of an administrator does not postpone the beginning of the one-year period. Note, 70 A.L.R. 472. The principle, applied to the facts of the case at bar, confutes the plaintiff's contention. A creditor like the plaintiff may apply for administration. Wooster v. Hunts Lyman Iron Co., 38 Conn. 256, 259; Cleaveland, Hewitt & Clark, Probate Law, § 165; see General Statutes, § 4906. In discussing a similar statute, the Massachusetts court held, in a case where both the person injured and the wrongdoer died, that neither event extended the time to sue and said: ‘Apparently the Legislature regarded a year as sufficient time within which to commence an action, even though, by reason of the death of the wrongdoer, the appointment of an executor or administrator of his estate within that period became necessary. If his widow or next of kin neglected to petition for such appointment the plaintiff as a creditor was entitled to do so. * * * The possibility that some restriction upon the right to sue may result from the death of a wrongdoer does not warrant a different construction of the statute in the case of a cause of action which is a statutory creation. * * *’ Bickford v. Furber, 271 Mass. 94, 98 170 N.E. 796, 798, 70 A.L.R. 469; and see Reading Co. v. Koons, 271 U.S. 58, 62, 46 S.Ct. 405, 70 L.Ed. 835.

Finally, § 1005h is specific in that it gives a right of action which did not exist at common law, and the year fixed within which the action must be commenced is ‘a limitation of the liability itself as created, and not of the remedy alone.’ De Martino v. Siemon, 90 Conn. 527, 529, 97 A. 765; Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 401, 99 A. 1048. Section 4918 is general in terms and prescribes the procedure by which and the times within which the claims against the estate of a deceased person may be enforced by suit. ‘In such a situation we have said that, if one of two enactments is special and particular and clearly includes the matter in controversy, whilst the other is general and would, if standing alone, include it also, and if the inclusion of that matter in the general enactment would produce a conflict between it and the special provisions, it must be taken that the latter were designed as an exception to the general provisions.’ Wentworth v. L. & L. Dining Co., 116 Conn. 364, 369, 165 A. 203, 204. Oles v. Furlong, 134 Conn. 334 57 A.2d 405. Section 1005h is not limited or modified by § 4918.

The plaintiff's second claim, also said to be a matter of first impression, is that General Statutes, § 6024, modifies § 1005h and in terms or by implication authorizes the complaint under consideration. Section 6024 does modify § 1005h if the circumstances bring the case within its terms. Korb v. Bridgeport Gas Light Co., supra. Section 6024 was first passed as Public Acts 1862, Chap. 14, although it appears in very limited form as early as Statutes, 1821, p. 311. See Sherman v. Barnes, 8 Conn. 138, 143. It has been amended repeatedly to cover additional situations but its basic provisions have not been changed. See Johnson v. Wheeler, 108 Conn. 484, 488, 143 A. 898. It is entitled ‘Accidental...