Bulkley v. Norwich & W. Ry. Co.

• Decision Date: 27 October 1908
• Citation: 81 Conn. 284,70 A. 1021
• Court: Connecticut Supreme Court
• Parties: BULKLEY et ux. v. NORWICH & W. RY. CO.

70 A. 1021

81 Conn. 284

BULKLEY et ux.

v. NORWICH & W. RY. CO.

Supreme Court of Errors of Connecticut.

Oct. 27, 1908.

Appeal from Superior Court, Middlesex County; Ralph Wheeler, Judge.

Personal injury action by Francis F. Bulkley and wife against the Norwich & Westerly Railway Company. From a judgment for plaintiffs for $750, defendant appeals. No error.

The complaint, dated November 21, 1907, alleges in substance that the plaintiff wife, on August 11, 1907, while a passenger, in the exercise of due care, on a car of the defendant common carrier, received bodily injuries as the result of a collision between such car and another car of the defendant going in the opposite direction upon the same track, which collision and injuries were caused by the negligence of the defendant, its servants and agents. There was no allegation of the giving of a written notice to the defendant. The officer's return of his service of the writ and complaint stated that it was made on December 2, 1907. The defendant demurred to the complaint for the following reason: "Because it appears and is alleged in said complaint that the injury to the plaintiffs constituting said cause of action occurred on August 1, 1907, and this action was not commenced within the period of four months from said August 1, 1907, as appears from the officer's return therein, and it is not alleged and does not appear in said complaint that written notice containing a general description of the injury, and of the time, place, and cause of its occurrence, as nearly as the same can be ascertained, was given to the defendant within four months after said August 1, 1907, the date of the neglect complained of in said action." The demurrer was overruled. This action of the court is assigned as the sole reason of appeal.

Donald G. Perkins, for appellant.

Richard H. Tyner, for appellees.

PRENTICE, J. (after stating the facts as above). This demurrer involves two false assumptions, to wit: First, that the plaintiffs' allegations of time precluded them from proving that Mrs. Bulkley received her alleged injuries on some day later than that alleged; and, second, that the statements of the officer in his return of service were to be accepted as facts coming within the purview of the demurrer to the complaint. The plaintiffs' averment of the time when the events which furnished the basis of their cause of action occurred was an immaterial one, and, upon a trial, proof that they occurred upon some subsequent day which would render the demurrer pointless would have been admissible. Fitzgerald v. Scovil Mfg. Co., 77 Conn. 528, 529, 60 Atl. 132; Sage v. Hawley, 16 Conn. 106, 111, 41 Am. Dec. 128; Gould on Pleading, c. 3, §§ 63, 64. An allegation of time, originally immaterial, may become material by reason of subsequent pleading. Fitzgerald v. Scovil Mfg. Co., 77 Conn. 528, 529, 60 Atl. 132. Such a result, however, does not follow from demurring. The complaint stated a good cause of action, since under its averments such a cause of action could be proved without creating a variance.

The demurrer was to the complaint. We have held that a complaint may, for the purposes of a demurrer, be read in connection with the writ which it accompanies....