Johnson v. Wheeler

• Decision Date: 18 December 1928
• Citation: 108 Conn. 484,143 A. 898
• Court: Connecticut Supreme Court
• Parties: JOHNSON v. WHEELER.

143 A. 898

108 Conn. 484

JOHNSON v. WHEELER.

Supreme Court of Errors of Connecticut.

December 18, 1928

Appeal from Superior Court, New London County; Allyn L. Brown Arthur F. Ells, and John Rufus Booth, Judges.

Action by James W. Johnson, Jr., a minor, by his next friend against Charles E. Wheeler, for damages caused by defendant's alleged negligence. Tried to the court. Verdict and judgment for plaintiff, and defendant appeals. No error.

Benjamin H. Hewitt, of Mystic, for appellant.

George C. Morgan, of New London, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The complaint alleges that this action was brought by virtue of section 6171 of the General Statutes, which provides that " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service * * * or if a judgment of nonsuit is rendered * * * the plaintiff * * * may commence a new action for the same cause at any time within one year after the determination of the original action. * * *"

The defendant first pleaded in abatement that another action had been brought for the same injury as the present action, in which a judgment of nonsuit was rendered after the plaintiff had rested his case. A demurrer to this plea, based upon General Statutes, § 6171, was sustained. Then the defendant demurred to the complaint, because the present action is the same cause of action previously adjudged, and the demurrer was overruled. The ruling upon these demurrers was correct. The statute in express terms gave the plaintiff the right to begin a new action for the same cause within a specified time.

The defendant next, in the third defense of his answer, alleged that the present cause of action is not based upon the same allegations of negligence claimed in the former action, and hence is not brought within one year after the claimed cause of action occurred. Literally read, the statute would permit the commencement of a new action for the same cause at any time within one year after the judgment of nonsuit. The statute (General Statutes of 1902, § 1127, as amended by chapter 206, Public Acts 1913) formerly read: " If in any action, commenced within the time limited by law, the writ shall fail of a sufficient service or return, by any unavoidable accident, * * * or if any judgment of nonsuit is rendered. * * *"

In Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 398, 99 A. 1048, 1051, we held that an action for negligently causing death might be brought under section 1127, as amended, within one year from the determination by a judgment of nonsuit of a former action for the same cause begun within one year from the neglect, and construed the statute in these words: " Section 1127 provides that if any action, commenced within the time limited by law, shall fail for specified causes, the plaintiff may bring a new action for the same cause within one year after the determination of the original action. This language certainly is general and comprehensive. It neither embodies exceptions or reservations, nor suggests any. The extension of time is in terms made applicable to all cases where a suit, seasonably begun, has failed for the causes stated. That the power of the General Assembly was adequate in the premises is undoubted, since the whole matter rests in legislation. If there is to be any restriction, it must be the result of legal construction, and the reasons for such construction are not apparent. The provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. Those hardships are the same in character, whether the statute be one which concerns the remedy only, or the right as well as the remedy. It should be so construed as to advance the remedy rather than to retard it."

Public Acts of 1915, c. 191, § 1, provides: " The provisions of chapter 206 of the Public Acts of 1913 shall apply to any civil action brought within the time prescribed therein and which has failed one or more times to be tried on its merits for any of the causes mentioned in said act." The provisions of this act are thus made to apply to any civil action, brought within the prescribed time, which has failed one or more times to be tried on its merits for any of the causes named in section 1127.

The revisers of the General Statutes of 1918 incorporated this amendment with the then existing section 1127; presumptively they did not intend to change this section, except as this amendment had changed...