Cofrancesco v. Smith

• Decision Date: 17 February 1971
• Docket Number: No. 122897,122897
• Citation: 275 A.2d 608,29 Conn.Supp. 139
• Court: Connecticut Superior Court
• Parties: Pasquale COFRANCESCO v. Allen SMITH et al.

Page 608

275 A.2d 608

29 Conn.Supp. 139

Pasquale COFRANCESCO v. Allen SMITH et al.

No. 122897.

Superior Court of Connecticut, New Haven County, at New Haven.

Feb. 17, 1971.

Olmer & Krevolin, New Haven, for plaintiff.

Reilly & Peck, New Haven, for defendants.

FITZ GERALD, Judge.

By writ, summons and complaint dated February 17, 1970, served on the two defendants on February 19, 1970, and returned to this court on the first Tuesday of April, 1970, the designated plaintiff therein, Pasquale Cofrancesco, brought the within action to recover damages for the death, on February 18, 1969, of Sue Ann Cofrancesco, who, while crossing a certain highway in Bethany on the afternoon of that day, was allegedly struck by a car owned by the defendant husband and being operated negligently by the defendant wife. Paragraph 1 of the complaint in its original form alleges, among other things, that the decedent died leaving no will, being survived by the plaintiff, her father, and by her mother, as sole heirs; that no estate up to that time had been opened but that the plaintiff had made application to be appointed administrator by the Probate Court for the district of Bethany. By an amendment filed April 8, 1970, dated the preceding day, the originally designated plaintiff filed an amendment to the writ, summons and complaint by substituting the name of 'Pasquale Cofrancesco, Administrator of the Estate of Sue Ann Cofrancesco,' as plaintiff, and substituting another paragraph in lieu of paragraph 1 of the complaint in its original form. The substituted paragraph is patterned upon the original paragraph 1 with the exception of the concluding words, which read: '(O)n February 27, 1970, Pasquale Cofrancesco was appointed Administrator of the Estate of Sue Ann Cofrancesco in the Probate Court, District of Bethany, State of Connecticut.'

The defendants move to erase the action from the docket upon the grounds recited in their motion as on file. Basically, the stated grounds challenge the jurisdiction of the court over the cause of action. 'Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process.' Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175, 177; McCoy v. Raucci, 156 Conn. 115, 117, 239 A.2d 689.

The question of jurisdiction raised by the motion to erase under consideration relates to subject matter. The Connecticut rule is that a motion to erase from the docket will be granted only when it clearly appears on the face of the record that the court is without jurisdiction. Such a motion admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Brown v. Cato, supra, 147 Conn. 419, 162 A.2d and cases cited. '(T)he question, once raised, must be disposed of no matter in what form it is presented.' Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711, 715.

The originally designated plaintiff was Pasquale Cofrancesco, father of the decedent, who lost her lief on February 18, 1969, when allegedly struck on the afternoon of that day by a car owned by the defendant husband and being operated negligently by the defendant wife. As party plaintiff in the originally instituted action, Pasquale Cofrancesco asked damages in the amount of $150,000 for the decedent's death. The original writ, summons and complaint, as disclosed by the officer's return, were served on February 19, 1970, a year and one day after the fatality. The amendment to the original writ, summons and complaint, filed April 8, 1970, within thirty days after return day, recites that the appointment of the originally designated plaintiff as administrator by the Probate Court was on February 27, 1970, being a year and nine days after the decedent's death. Here in Connecticut, an action is regraded as having been brought on the date of service on the defendant. Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621; Seaboard Burner Corp. v. DeLong, 145 Conn. 300, 303, 141 A.2d 642. In this case, that date was February 19, 1970. As already pointed out, that date is a year and one day after the fatality (February 18, 1969). Since the initial service upon the defendants was made February 19, 1970, the plaintiff's appointment as administrator on February 27, 1970, was eight days subsequent thereto.

' Death, at common law, is not a recoverable element of damage.' Foran v. Carangelo, 153 Conn. 356, 359, 216 A.2d 638, 640, citing Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918, and 22 Am.Jur.2d, Death, § 1. It is only by reason of statute that a death action is maintainable in Connecticut. General Statutes § 52-555. This statute provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually. Moreover, the statute contains a limitation of one year from the date of injury in which such an action can be brought. ¹ The Connecticut rule, and the general rule, is 'that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone.' DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765, and cases cited from other jurisdictions, as well as the earlier Connecticut case of Radezky v. Sargent & Co., 77 Conn. 110, 58 A. 709. The rule stated in DeMartino by strong implication supports the proposition that delay in taking out administration does not extend the one-year time limitation contained in the statute. Compare the comment in Baker v. Baningoso, 134 Conn. 382, 384, 58 A.2d 5, following a quotation from Radezky.

The writ, summons and complaint as originally drawn were a nullity in that they stated no cause of action recognized in Connecticut. That paragraph 1 of the complaint in its original form alleges that the plaintiff had made application to be appointed administrator in no sense cured the nullity of the initially alleged cause of action.

Did the subsequent amendment of April 8, 1970, in which it is made to appear that on February 27, 1970, the originally designated plaintiff was appointed administrator of the estate by the...