Gallo v. G. Fox & Co.

• Citation: 148 Conn. 327,170 A.2d 724
• Court: Supreme Court of Connecticut
• Decision Date: 02 May 1961
• Parties: Carmella GALLO v. G. FOX AND COMPANY, Inc. Supreme Court of Errors of Connecticut

Page 724

170 A.2d 724

148 Conn. 327

Carmella GALLO v. G. FOX AND COMPANY, Inc.

Supreme Court of Errors of Connecticut.

May 2, 1961.

Salvador A. Fasi, Hartford, with whom, on the brief, was Anthony L. DiLorenzo, Hartford, for the appellant (plaintiff).

Aaron Nassau, Hartford, with whom were William J. White, E. Hartford, and, on the brief, Solomon Elsner, Hartford, for the appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ. SHEA, Associate Justice.

In her complaint, the plaintiff alleged that on or about June 29, 1949, she sustained injuries owing to the negligence of the defendant. In its answer, the defendant denied the material allegations of the complaint and, by way of a first special defense, alleged that the 'right of action for the cause stated in the Complaint did not accrue within one year next before the commencement of this action, as required under the provisions of' § 52-584 of the General Statutes. The plaintiff replied to this special defense by alleging that the action was originally instituted by writ, summons and complaint returnable to the Superior Court in Hartford County on the first Tuesday of February, 1950, that a judgment of nonsuit was entered in that case on April 23, 1959, and that the present action was instituted within the time allowed by law under § 52-592, which permits the commencement of a new action for the same cause where a judgment of nonsuit had been granted. On the defendant's motion, the court ordered that all the pleadings in the first action, and the court's rulings on the pleadings, be made a part of the file in this case. Thereafter, the defendant demurred to the plaintiff's reply to the first special defense. The trial court sustained the demurrer. The plaintiff refused to plead further, and judgment was rendered for the defendant. The plaintiff has appealed.

This action was instituted more than ten years after the date of the accident alleged in the complaint. Accordingly, it is barred by the Statute of Limitations (§ 52-584) unless a new action is authorized by § 52-592, the pertinent provisions of which appear in the footnote. ¹ This statute was passed to avoid the hardships arising from an unbending enforcement of limitation statutes. The extension of time provided by it applies to all cases where a suit, seasonably begun, has failed for one or more of the causes stated. Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 401, 99 A. 1048. Under the second ground of demurrer to the plaintiff's reply, the defendant claims that the remedy provided by § 52-592 is not available to the plaintiff for the reason that the cause of action she is alleging in the present complaint is not the same as the cause of action she alleged in the complaint in the first case. If the defendant's contention is sound, the present action must fail.

A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778; Veits v. City of Hartford, 134 Conn. 428, 434, 58 A.2d 389. 'A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.' Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725. A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. Johnson v. Wheeler, 108 Conn. 484, 488, 143 A. 898; Galvin v. Birch, 97 Conn. 399, 401, 116 A. 908; O'Brien v. M & P Theatres Corporation, 72 R.I. 289, 296, 50 A.2d 781, 171 A.L.R. 1081. It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. Veits v. Hartford, supra; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, 77 L.Ed. 619; Seaboard Air Line Ry. v. Renn, 241 U.S. 290, 293, 36 S.Ct. 567, 60 L.Ed. 1006.

In the complaint in the first action, the plaintiff alleged that her injuries were caused by the negligence of the defendant in the maintenance, operation and control of an escalator which ascended from the basement floor to the first floor of the defendant's premises. According to the...