Gumpper v. Waterbury Traction Co.

• Decision Date: 22 December 1896
• Citation: 68 Conn. 424,36 A. 806
• Court: Connecticut Supreme Court
• Parties: GUMPPER v. WATERBURY TRACTION CO.

36 A. 806

68 Conn. 424

GUMPPER

v. WATERBURY TRACTION CO.

Supreme Court of Errors of Connecticut.

Dec. 22, 1896.

Appeal from superior court, New Haven county; Prentice, Judge.

Action by Amelia Gumpper against the Waterbury Traction Company for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Error.

Charles G. Root and Terrence F. Carmody, for appellant.

George E. Terry and Nathaniel R. Bronson, for appellee.

TORRANCE, J. The statute (chapter 176, Pub. Acts 1895) provides that "no suit or action for damages on account of injury to, or death of, any person caused by negligence shall be maintained against any electric, cable, horse, or steam railroad company, unless written notice of a claim therefor, giving a general description of such injury and the time, place, and cause of its occurrence, as nearly as the same can be ascertained, shall have been given to the defendant company within four months after the neglect complained of." The second section of the act provides as follows: "Notice for any claim for damages occurring prior to the passage of this act may be given within four months after this act shall take effect." The act was approved June 1, 1895, and took effect on the 1st of August following. Chapter 292, Pub. Acts 1895. The case at bar is an action against an electric street-railway company for damages on account of an injury to the plaintiff occurring on the 8th of June, 1895, caused, as it is alleged, by the carelessness and negligence of said company in running one of its cars against the wagon of the plaintiff in which she was traveling on the highway. The suit was brought after August 1, 1895, and consequently after the act aforesaid went into effect, and the complaint contains no allegation that the notice required by that act was given to the defendant. The defendant demurred to the complaint "because there is no allegation therein contained that notice was given to the defendant of the time, place, and nature of said accident, as by law required." The court below sustained the demurrer, and thereupon rendered judgment for the defendant, and from that judgment the present appeal is taken.

The plaintiff claims that this case is not within the statute, and that the court below erred in holding (1) that an allegation of notice was necessary; (2) that notice was necessary. If the case is not within the statute, then clearly no notice under the statute was required; and, if none was required, none need be alleged in the complaint. The question, then, whether notice was necessary, is the first question to be considered; for, if it was not, the other question is of no importance here. This act took effect and became operative on the 1st of August, 1895, and not before, and it speaks from, and should be construed as if passed on, that day, and ordered to take immediate effect. Up to the moment that it went into effect the plaintiff had the right to bring her suit for damages without giving the defendant any prior notice of her claim for such damages; and if her suit, so brought, had been pending when the act took effect, it would not have been in any way affected thereby; for, though the language of the act is that no such suit or action "shall be maintained" unless "written notice * * * shall have been given," it is clear, taking the act as a whole, that this has reference, not to suits of this kind pending when the act became operative, but only to suits thereafter to be brought. "Men, both in and out of the profession, often speak of maintaining an action, having reference to one yet to be instituted." Pardee, J., in Smith v. Lyon, 44 Conn. 175, 178. And it is in this sense we think that the word "maintained" is used in this act.

The act, in terms, at least, applies (1) to all future cases of injury of the kind described in it; and (2) to all past cases of this kind...