Cassidy v. Town of Southbury

• Decision Date: 09 February 1912
• Citation: 82 A. 198,85 Conn. 221
• Court: Connecticut Supreme Court
• Parties: CASSIDY et al. v. TOWN OF SOUTHBURY.

82 A. 198

85 Conn. 221

CASSIDY et al. v. TOWN OF SOUTHBURY.

Supreme Court of Errors of Connecticut.

February 9, 1912

Appeal from District Court of Waterbury; Frederick M. Peasley Judge.

Action by John J. Cassidy and another against the Town of Southbury. From a judgment for defendant, plaintiffs appeal. Reversed and new trial ordered.

Herman J. Weisman, for appellants.

Lawrence L. Lewis, for appellee.

WHEELER, J.

The statute provides, as a condition precedent to the institution of an action of this character, that written notice of the injury and a general description of the same shall be given. It was the duty of the plaintiffs, under Practice Book 1908, p. 244, § 143, to either recite the notice in the complaint, or annex it thereto. The obvious purpose of this rule was to have the sufficiency of the notice, if denied, tested by demurrer preceding the trial. The plaintiffs did not comply with this rule. But they did set up the injuries with sufficient particularity in the fourth paragraph of the complaint, viz.: Said horse was injured about the legs and body and lamed and permanently injured so that he is now worth $200 less than before said fall; and the plaintiffs have expended $25 for medicine and medical attendance in endeavoring to cure said horse. Said wagon was injured so that it is now worth $50 less than it was before said fall as a consequence of said fall, and the plaintiffs have expended or will be obliged to expend $35 in repairing the damages to the same. The plaintiffs lost the use of the said wagon and horse for a period of two months, which loss of use is worth $120." In the next succeeding paragraph (5) they recited that the plaintiffs caused written notice of said injuries to be given said town.

This was the equivalent of a direct allegation that they caused written notice of the injuries as detailed in paragraph 4 to be given said town.

This notice, if given, was a reasonable compliance with the statutory requirement.

The defendant admitted paragraph 5, which recited the giving of the notice, and with this admitted that the notice contained the description of the injuries recited in paragraph 4.

This admission was the full equivalent of uncontradicted proof of these facts by credible witnesses. It removed the giving of a sufficient notice of the injuries from the controverted issues of the case.

There was no further occasion to submit proof of this. The jury, whatever the proof, could not find contrary to the defendant's own admission on the record that the notice did contain a sufficient description of the injuries.

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