Kennedy v. Johns-manville Sales Corp...

• Decision Date: 18 November 1948
• Court: Connecticut Supreme Court
• Parties: KENNEDY v. JOHNS-MANVILLE SALES CORPORATION.

135 Conn. 176

62 A.2d 771

KENNEDY

v.JOHNS-MANVILLE SALES CORPORATION.

Supreme Court of Errors of Connecticut.

Nov. 18, 1948.

Appeal from Superior Court, Hartford County; Inglis, Judge.

Action by Anna R. Kennedy against Johns-Manville Sales Corporation to recover damages alleged to have been caused by the negligent insulation of a building by defendant and for breach of contract by defendant to do the work in a skillful and workmanlike manner. Demurrer to complaint was sustained, and plaintiff failed to plead further. From a judgment for defendant, plaintiff appealed.

No error.

Joseph B. Hurwitz, of Hartford (Elihu H. Berman, of Hartford, on the brief), for appellant (plaintiff).

Martin E. Gormley, of New Haven, for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

This action was commenced in 1946. The amended complaint alleged in the first count that in 1935 the defendant insulated the walls of the plaintiff's house and did it in such a negligent manner that the walls were injured, but that the injuries did not become apparent until December, 1945; and in the second count that the defendant breached its contract to do the work in a skillful and workmanlike manner. The defendant demurred to each count on the ground that recovery was barred by the Statute of Limitations, the trial court sustained the demurrer, the plaintiff failed to plead over, and judgment was entered for the defendant. The plaintiff has appealed.

Both counts arise out of the same alleged facts. In 1935, the plaintiff engaged the defendant to insulate her house in Hartford. The defendant completed the work during that year, but did it ‘in so unskillful, unworkmanlike and negligent a manner, that the stucco on said building bulged and became loose and cracked, the sheathing and studding underneath said stucco became rotted, and the walls of said building leaked, causing damage to the walls of said building.’ In an attempt to anticipate the obvious defenses of the statutes of limitation, each count contains the following allegation: ‘Although the plaintiff exercised reasonable diligence in inspecting said building, she did not discover said condition, and because said conditions were concealed within the walls of said building, she did not have any opportunity to discover or become aware of the same, until December, 1945, when visible cracks first appeared on the stucco of said building.’ It is not alleged that there was fraudulent concealment of the cause of action by the defendant or a conscious effort to prevent knowledge by the plaintiff of the alleged default.

The Statute of Limitations which applies to the count which alleges negligence is General Statutes, Cum.Sup.1935, § 1680c. In its application to the present case it reads as follows: ‘No action to recover damages for injury to the person, or to real or personal property, caused by negligence, * * * shall be brought but within one year from the date of the act or omission complained of.’ Section 1680c became effective July 1, 1935. It is alleged in the first count that the work was completed during 1935, and, although the work might have been finished before § 1680c took effect, the action was not begun until 1946, and § 1680c would apply. Fitzgerald v. Scovil Mfg. Co., 77 Conn. 528, 529, 60 A. 132. We have not overlooked the fact that § 1680c has been twice amended. In the first section of an amendment at the legislative session of 1941 (Pub.Acts, 1941, Chap. 99) actions against chiropractors were added to those previously included, and in the second section it was provided that ‘The provisions of this act shall not apply to any action the cause for which arose prior to July 1, 1941.’ These two sections were combined into one in the 1941 Supplement, § 861f. An examination of the original act makes it clear, however, that it was the amendment made in 1941 which was not to apply to actions the causes of which arose prior to 1941, and not § 1680c as it stood prior to that time. The same situation is presented by the further amendment to that section made in 1943. Pub.Acts, 1943, Chap. 152; Sup.1943, § 731g.

The act or omission complained of occurred in 1935. It follows that the cause of action based upon negligence is barred. The plaintiff relies on Bank of Hartford County v. Waterman, 26 Conn. 324, at p. 331. We held in that case that no right of action arose until a certain consequence resulted, and that the damage then arising did not enhance a legal injury already suffered, nor was it a mere development of such an injury, but until it ensued no legal wrong existed. See Maggay v. Nikitko, 117 Conn. 206, 213, 167 A. 816. In the case before us the legal wrong was done when the alleged faulty work was performed, and the damages later discovered merely enhanced that wrong.

The amended complaint does not state whether the contract was oral or in writing. General Statutes, § 6010, limits to three years actions on contracts not reduced to or evidenced by a writing, that is, contracts resting in parol. It applies only to executory...