Kirwan v. State

• Decision Date: 01 March 1974
• Docket Number: No. 180777,180777
• Citation: 320 A.2d 837,31 Conn.Supp. 46
• Court: Connecticut Superior Court
• Parties: Andrew D. KIRWAN v. STATE of Connecticut et al.

Page 837

320 A.2d 837

31 Conn.Supp. 46

Andrew D. KIRWAN v. STATE of Connecticut et al.

No. 180777.

Superior Court of Connecticut, Hartford County.

March 1, 1974.

Salzman & Cantor, New Haven, for plaintiff.

Day, Berry & Howard, and Robinson, Robinson & Cole, Hartford, for defendant Institute of Living.

Rogin, Nassau, Caplan, Lassman & Borden, Hartford, for defendant Kinsella.

Robert K. Killian, Atty. Gen., Barney Lapp and Daniel R. Schaefer, Asst. Attys. Gen., for defendants State and others.

Francis J. MacGregor, Asst. Atty. Gen., for defendant welfare commissioner.

SHEA, Judge.

The plaintiff brought this action in two counts seeking damages for false imprisonment and for negligent medical or psychiatric treatment while he was confined from July 21, 1941, to August 11, 1967, in mental hospitals within Connecticut. A demurrer was sustained in respect to the defendant James H. Kinsella, the present probate judge for the district of Hartford, whose predecessor in office ordered the original commitment of the plaintiff to the mental hospital operated by the defendant Institute of Living on August 6, 1941. Judgment was entered on this demurrer, and the case also has been withdrawn against the defendant Jay E. Rubinow, administrator of the probate courts at the time suit was brought. The remaining defendants are the Institute of Living; Ernest A. Shepherd, commissioner of mental health, and Franklin M. Foote, commissioner of health.

The Institute of Living, which unsuccessfully attempted to raise the defense of the Statute of Limitations by demurrer to the complaint, has filed an answer containing as a first special defense a claim that 'it does not appear that the acts complainted of on the part of this defendant occurred within three years next nor within six years next before commencement of this action.' Presumably this defense is intended to raise the bar of General Statutes § 52-577, requiring that any action founded upon a tort be brought 'within three years from the date of the act or omission complained of,' and also of § 52-576, which imposes a six-year limitation 'after the right of action accrues' for suits upon a contract.

The plaintiff denied the allegations of this defense and also has pleaded an affirmative reply as follows: 'A. Any statute of limitations which might apply was tolled because the plaintiff's decedent was of unsound mind. ¹ B. Any statute of limitations which might apply was tolled because the plaintiff's decedent was falsely imprisoned.' The demurrer of the defendant Institute to this reply relies on two grounds: (1) The Statute of Limitations would not be tolled by the fact that the deceased plaintiff was of unsound mind. (2) The pleadings show that any false imprisonment by the Institute terminated in 1942, and subsequent false imprisonment by other unrelated parties would not toll the Statute of Limitations so far as the Institute is concerned.

I

General Statutes § 52-577, which establishes a three-year limitation for tort actions, contains no exceptions for persons who might be under some disability, such as minors or incompetents. A claim that the Statute of Limitations applicable to negligence actions, § 52-584, carries an implied exception for minors was rejected in Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 92 A.2d 731. Presumably the same result would have been reached if § 52-577 had been the statute under consideration, since it is the source from which § 52-584 has been 'carved out.' Id., 222, 92 A.2d 731; Tuohey v. Martinjak, 119 Conn. 500 507, 177 A. 721. The fact that express exceptions for minors are made in some limitation statutes, such as §§ 52-575 and 52-579, was regarded as an indication that the omission of such an exception in others was deliberate on the part of the legislature. Lametta v. Connecticut Light & Power Co., supra, 139 Conn. 220, 92 A.2d 731. The problems which such an exception would create in respect to the policy against enforcement of stale claims embodied in the limitation statutes also were persuasive. Id., 221, 92 A.2d 731.

Although the ground of disability relied upon here is that the plaintiff was non compos mentis, the reasoning of the Lametta case is fully applicable to such as situation. If the legislature wanted to create an exception for such persons in respect to § 52-577, it could have done so. It is noteworthy that § 52-575, limiting the time for entry upon land to fifteen years, expressly creates an exception for minors and for persons who are mentally unsound or who are imprisoned.

It is the general rule, followed in most jurisdictions, that the court will not read into a Statute of Limitations any exception in favor of minors or persons non compos mentis. 51 Am.Jur.2d, Limitation of Actions, §§ 178-186. The plaintiff relies upon several cases which appear to take a contrary view. Triplett v. Williams, 269 Cal.App.2d 135, 74 Cal.Rptr. 594; Durham v. Coon, 338 Ill.App. 204, 86 N.E.2d 852; Brown v. Brown, 93 N.Y.S.2d 63, 76, Sup., modified on other grounds, 275 App.Div. 1068, 93 N.Y.S.2d 86, aff'd, 302 N.Y. 556, 96 N.E.2d 443; Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492. It is not clear from the reports of those opinions whether some express statutory provision was made in those states for incompetents. The federal courts have adhered to the 'rigid prevailing rule' that insanity does not toll the statute in the absence of an express exception. Williams v. United States, 228 F.2d 129, 132. There is a minority view on the question, however. 54 C.J.S. Limitation of Actions § 242.

Considering the applicable precedent and the statutory pattern of our limitation statutes, some of which create exceptions applicable to the situation involved here for certain causes of action, the court is of the opinion that the deficiencies in our limitation statutes can best be remedied by the legislature. Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 222, 92 A.2d 731.

II

General Statutes § 52-576, the six-year Statute of Limitations applicable to contract actions, contains an exception as follows: '* * * but persons legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years next after becoming legally capable of bringing such action.'

The term 'legally incapable' includes minors, who cannot commence a suit in their own names. 2 Locke & Kohn, Conn. Probate Practice § 709. In this state, however, an incompetent person is under no legal disability to bring suit in his own name. Ibid.; Looby v. Redmond, 66 Conn. 444, 447, 34 A. 102. Although there are obvious practical difficulties in bringing a lawsuit for persons confined in a mental hospital, there is ample statutory provision for communication and visitation by such persons, and also for access to the courts. General Statutes §§ 17-206g, 17-206h, 17-201. The obstacles are not insurmountable. Mayock v. Martin, 157 Conn. 56, 245 A.2d 574; Mayock v. Superintendent, 154 Conn. 704, 224 A.2d 544.

III

It is generally held, in the absence of a specific exception such as that contained in General Statutes § 52-575, that imprisonment does not toll the running of a Statute of Limitations. 51 Am.Jur.2d, Limitation of Actions, § 192; 54 C.J.S. Limitation of Actions § 241; note, 24 A.L.R.2d 618, 619.

Nevertheless, the authorities are in agreement that the Statute of Limitations does not begin to run on a cause of action for false imprisonment until termination of the imprisonment. 32 Am.Jur.2d, False Imprisonment, § 84; 54 C.J.S. Limitation of Actions § 175, p. 145; note, 49 A.L.R.2d 922. 'The right of action for false imprisonment accrues at the beginning of the imprisonment but does not become complete until the termination thereof, the tort being regarded as divisible.' 35 C.J.S. False Imprisonment § 49, p. 714. The defendant Institute claims, however, that any false imprisonment for which it was responsible terminated in 1942, according to the complaint, and the subsequent false imprisonment alleged on...