Edmundson v. Rivera

• Decision Date: 25 November 1975
• Citation: 363 A.2d 1031,169 Conn. 630
• Court: Connecticut Supreme Court
• Parties: Arthur EDMUNDSON, Jr. v. Miguel F. RIVERA et al.

Page 1031

363 A.2d 1031

169 Conn. 630

Arthur EDMUNDSON, Jr. v. Miguel F. RIVERA et al.

Supreme Court of Connecticut.

Nov. 25, 1975.

Edward F. Kunin, Bridgeport, with whom, on the brief, was Lester E. Blank, Bridgeport, for appellant (plaintiff).

Richard M. Sheiman, Deputy City Atty., with whom, on the brief, were Richard F. Oburchay, City Atty., and Jack Samowitz, Bridgeport, for appellees defendants.

Before HOUSE, C.J., and BOGDANSKI, LONGO, BARBER and MacDONALD, JJ.

MacDONALD, Associate Justice.

The plaintiff, an employee of the defendant city of Bridgeport, while working on a truck owned by that city, was seriously injured when it was struck by another truck owned by the city and operated at the time by another of its employees, the defendant Rivera. He has appealed from a judgment entered for the defendants upon the plaintiff's failure to plead further after the court had sustained the defendants' demurrer to the complaint on the ground that the plaintiff's action was barred by § 7-465 of the General Statutes, the court having previously overruled the plaintiff's demurrer to the defendants' special defense setting forth § 7-465 as a bar to the action.

It is uncontroverted that the accident in question occurred while both the plaintiff and the defendant Rivera were acting within the scope of their employment by the defendant city of Bridgeport, and that the plaintiff has received the benefits to which he was entitled under the Workmen's Compensation Act. The sole issue presented by this appeal is whether § 31-293a (chapter 568, Workmen's Compensation Act) barring employees in general from bringing a negligence action against a fellow employee except for negligence in the operation of a motor vehicle or unless such wrong was wilful or malicious, ¹ amends or repeals § 7-465 (title 7, Municipalities) which bars such actions against a fellow municipal employee except only where the act causing the injury was wilful and malicious. ²

It is the contention of the plaintiff that the legislature, when it enacted § 31-293a, did not intend to distinguish between municipal employees and all other employees and that the trial court erred when it concluded that § 7-465 precluded his bringing a motor vehicle negligence action against a fellow municipal employee. He seeks to support this contention by citing cases which state the general proposition that remedial statutes, such as those contained in the Workmen's Compensation Act, are to be given a liberal construction so as to accomplish the purpose intended and, thus, in favor of the injured employee.

In seeking to invoke § 31-293a, applying to employees in general, to modify § 7-465, relating specifically to municipal employees, the plaintiff ignores the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction. Stoll v. Judd Co., 106 Conn. 551, 556, 138 A. 479. 'In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common-law is to be limited to matters clearly brought witmin its scope. 'The court is to go no faster and no further than the legislature has gone.' . . . A legislative intention not expressed in some appropriate manner has no legal existence.' Willoughby v. New Haven,123 Conn. 446, 454-55, 197 A. 85, 88. The applicability of this principle of construction to the present case appears in Wakelee v. DeSanto, 152 Conn. 44, 202 A.2d 833, where, although the plaintiff, a municipal employee, did not invoke the provisions of § 7-465, this court held that a 1961 amendment adding the 'wilful and malicious' act exception to immunity from suit would bar suits between municipal employees in such a situation, stating, 152 at page 47, 202 A.2d at page 834; 'Before the amendment became effective in 1961, an injured municipal employee had a common-law right of action against a fellow employee alone and his statutory right to compel the municipality to pay the damages awarded against his fellow employee was an additional, but not an exclusive, remedy.'

Municipal employees are covered under the provisions of the Workmen's Compensation Act; Olivieri v. Bridgeport, 126 Conn. 265, 275, 10 A.2d 770; and § 31-293a, prior to 1969, granted immunity from suit by a fellow employee unless the acts causing the injury were wilful or malicious. The same exception was contained in § 7-465 pertaining specifically to municipal employees. In 1969, § 31-293a was amended to add another exception to immunity from suit by fellow employees, namely, suits 'for negligence in the operation of a motor vehicle.' ³ Since that amendment the provisions of the two statutes cannot be reconciled. While it is true that apparently repugnant statutes are to be construed, if reasonably possible, so that both are operative; Danbury Rubber Co. v. Local 402, 145 Conn. 53, 57, 138 A.2d 783; statutes must be construed primarily to carry out the expressed intent of the legislature. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 46, 301 A.2d 244; Sloane v. Waterbury, 150 Conn. 24, 29, 183 A.2d 839. The exception set forth in § 31-293a is clear and unambiguous and if the legislature had intended it to modify or repeal any part of § 7-465, it would have been a simple matter to have said so. Had it been the intention of the legislature to enlarge the liability of a municipality for the acts or omissions of its employees in causes of action for which it would not formerly have been liable, it readily could have found apt words to do so. See Stevens v. Neligon, 116 Conn. 307, 312, 164 A. 661. "No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express." Dennis v. Shaw, 137 Conn. 450 452, 78 A.2d 691, 692.

With respect to the claim that § 31-293a should be construed as repealing, if not modifying, § 7-465, we stated, in Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 404, 294 A.2d 546, 544: 'Repeals by implication are not favored and will never be presumed where the old and new statute may well stand together. . . . Furthermore, '(a) special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest . ....