Gardner v. City of New London

• Citation: 28 A. 42,63 Conn. 267
• Court: Supreme Court of Connecticut
• Decision Date: 06 July 1893
• Parties: GARDNER v. CITY OF NEW LONDON.

28 A. 42

63 Conn. 267

GARDNER

v. CITY OF NEW LONDON.

Supreme Court of Errors of Connecticut.

July 6, 1893.

Appeal from superior court New London county; Fenn, Judge.

Action by Addison T. Gardner against the city of New London to recover for the loss of a horse, caused by a defect in a highway of defendant city. Defendant suffered a default, and the case was heard in damages. From a judgment for plaintiff for nominal damages only, he appeals. Affirmed,

A. P. Tanner and C. A. Gallup, for appellant.

A. Brandegee and W. C. Noyes. for appellee.

TORRANCE, J. This is an action brought to recover damages for the loss of a horse, by reason of a defective highway in the city of New London. The accident happened on the 2d day of May, 1892, but the statutory notice thereof given to the defendant stated that it occurred on the 5th day of that month. The notice itself is not set out in the complaint it being merely alleged there in that the injury occurred on a given day, and that due notice of the injury, of its nature, and of the time, place, and cause of its occurrence, was given to the defendant within the proper time. The case was defaulted, and heard in damages. Upon that hearing, without objection, the defendant offered, and the court received, in evidence a copy of the statutory notice. The court found that the injury occurred on the 2d day of May, 1892, was caused entirely by the negligence of the defendant, without any contributory negligence on the part of the plaintiff, and that the horse was worth $400. It is further found, in substance, that the defendant was not in fact misled by the notice; that the defendant's street commissioner had his attention called to the injury on the day of its occurrence; and that the next day the defendant, through its officials, inspected the place of the accident, and made a memorandum of the date of its occurrence. No reason was shown why or how the date came to be misstated in the notice. Thereupon the plaintiff claimed, in substance—First, that the notice was a sufficient legal notice under the statute; and, second, if it was not, that after the defendant had suffered a default it could not take advantage of the defect in the notice, nor could the same be considered for the purpose of reducing damages to a nominal sum. The court, contrary to the plaintiff's claims, and solely on account of the defective notice, rendered judgment for the plaintiff for nominal damages.

The record presents for consideration two Important questions: First, whether the notice was a sufficient legal notice under the statute; and, second, if not, whether, after the default, the defendant could take advantage of this, and have it considered on the question of damages. The answer to the first question depends entirely upon the construction of section 2673 of the General Statutes of this state, which reads as follows: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city, corporation, or borough, unless written notice of such injury, and of the nature and cause thereof, and of the time and place of its occurrence," shall be given in the manner therein prescribed. As first passed in 1874, the statute only required written notice of the injury, and of the time and place of its occurrence, but in 1883 it was amended so as to require notice of the nature and cause of the injury as well. Questions involving the legal sufficiency of notices given under this statute, both before and since it was amended, with reference to the statement of the injury, and of its cause and nature, and of the place of its occurrence, have been frequently before this court. See the cases of Shaw v. City of Waterbury, 46 Conn. 263; Tuttle v. Town of Winchester, 50 Conn. 496; Cloughessey v. City of Waterbury, 51 Conn. 405; Brown v. Town of Southbury, 53 Conn. 212, 1 Atl. 819; Biesiegel v. Town of Seymour, 58 Conn. 43, 19 Atl. 372; Lilly v. Town of Woodstock, 59 Conn. 219, 22 Atl. 40. In two of these cases —Shaw v. City of Waterbury and Lilly v. Town of Woodstock—the statement in the notice of the time of the injury was involved to some extent, but the precise point made in the case at bar has not before been presented for determination. The statute in express terms requires the notice to be in writing, and prescribes the substance of what it shall contain. The requirements of the statute are formalities in a certain sense, but they are formalities, the observance of which is made essential, for it has been determined that the giving of the statutory notice is in the nature of a condition precedent to the right of the plaintiff to maintain his action. Hoyle v. Town of Putnam, 46 Conn. 61; Fields v. Railroad Co., 54 Conn. 9, 4 Atl. 105; Biesiegel v. Town of Seymour, 58 Conn. 43, 19 Atl. 372. The statement of the time of the injury is in this way made essential, and the question made by the plaintiff is whether the notice must state the time truly and according to the fact. He contends that it need not do so, but may state that the injury occurred on one day, although in truth it occurred on another. We cannot assent to such a construction.

The legislature, in passing this statute, evidently regarded the precise identification of an accident or injury of this kind as a matter of some importance, for having at first, as we have seen, prescribed that the notice should contain only a statement of the injury, and of the time and place of its occurrence, it afterwards required it to contain a statement of the nature and cause of the injury; thus adding to its requirements for the apparent purpose of furnishing the party liable with such a notice of the event in permanent form as would render mistake and dispute almost impossible. Now, time is often an important element in the identification of a given transaction. For all practical purposes, an event which begins and ends on any given day is quite distinct from, and quite other than, an event which begins and ends on another day. Doubtless, an accident or injury might be with reasonable ease identified without a statement of the time, but the legislature, for reasons of its own, has seen fit to prescribe and make essential the statement of the time of the injury, and we cannot dispense with it by construction. To do so would be to repeal the statute, rather than to ascertain what it means. The statute, then, requires the time of the injury to be stated in the notice, and the natural and ordinary mode of stating the time of an event which begins and ends within the compass of a day, unless more particularity is required, is to state the day on which it occurred, together with the month and year, in the common and ordinary manner, and this we think is what the legislature intended by the word "time," as used in the statute in question. This court has quite recently held that it is sufficient to thus state the day, and that the hour need not be stated. Lilly v. Town of Woodstock, 59 Conn. 219, 22 Atl. 40. But, if the law requires the day of the injury to be stated in a written notice, surely it must mean the true day. There can be only one time of the injury, and that is the one day on which it occurred. Notice of this time is to be put in permanent form, and handed to the party liable for his information and guidance. Upon that notice the party liable is entitled to rely. Now, if such notice need not set forth the true day of the injury, then it may set forth any other at the whim of the plaintiff, for, if the day of the injury is once departed from, we have no guide as to what other day shall be stated. The statement of the true day is not only deemed important to the party liable, for the purpose of identifying the injury, but also that he may know whether the notice has been given within the proper time. In cases of injury from ice and snow this becomes quite important, because the notice must be given within so short a time after the injury. Now, if the notice may set forth any day as the day of the injury, such a notice as to time is not only useless, but it is positively harmful and misleading. It not only gives no information as to the time of the injury, but it gives false information. It is hardly supposable that such a result could have been contemplated by the legislature. The true date must in nearly every case be well known to the plaintiff or to his friends or agents, or it can be easily ascertained, and it is no hardship to require him to state it truly in the notice.

But the plaintiff says, and truly, that a reasonable latitude of description is allowed in stating in the notice the other matters which it must contain, and he cites several cases in support of this statement Thus, in Turtle v. Town of Winchester, 50 Conn. 496, the court says: "it is obvious that in many cases exactness of statement as to the place cannot be expected. * * * in such cases, reasonable definiteness is all that can be expected or should be required. If the description of the place will enable the town, city, or borough, through its proper officers, to ascertain the place by the exercise of reasonable diligence for the purpose, it will be sufficient" in Brown v. Town of Southbury, 53 Conn. 212, 1 Atl. 819, in speaking of the...