Korb v. Bridgeport Gas Light Co.

• Decision Date: 21 February 1917
• Citation: 99 A. 1048,91 Conn. 395
• Court: Connecticut Supreme Court
• Parties: KORB v. BRIDGEPORT GAS LIGHT CO.

99 A. 1048

91 Conn. 395

KORB

v. BRIDGEPORT GAS LIGHT CO.

Supreme Court of Errors of Connecticut.

Feb. 21, 1917.

Appeal from Superior Court, Fairfield County; James II. Webb, Judge.

Action by Louis J. Korb against the Bridgeport Gas Light Company. From a judgment based on a verdict for plaintiff, and order denying motion to set aside verdict, defendant appeals. Affirmed.

This action was brought under the provisions of section 4, c. 193, of the Public Acts of 1903, to recover for personal injuries resulting in the death of the plaintiff's intestate. The cause of injury and death is alleged to have been the escape of illuminating gas on the premises where the intestate slept, occasioned, as charged, by the negligence of the defendant in failing to properly safeguard the premises from such escape when, upon the day previous, it detached the service pipe extending into the building from a meter located in the entrance hall, and attached a so-called T-handle cock to the end of the pipe to prevent the flow of gas therefrom. In the course of the pleadings it appeared that the action was not commenced within one year from the neglect complained of, although 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. The defendant thereupon, in a demurrer to the reply, contended that the plaintiff had not presented a good cause of action. This demurrer was overruled, and the defendant pleaded over. The issues thus joined were tried to the jury, and a verdict and judgment for the plaintiff rendered. The reasons of appeal charge that there was error in the overruling of the demurrer, in certain passages of the charge, and in the denial of a motion to set aside the verdict as being against the evidence.

Arthur M. Marsh and David S. Day, both of Bridgeport, for appellant. Henry E. Shannon and Frank L. Wilder, both of Bridgeport, for appellee.

PRENTICE, C. J. (after stating the facts as above). The statute, under which this action was brought, creates a liability unknown to the common law, and contains a proviso that no action shall be brought upon it but within one year from the neglect complained of. This proviso is something more than an ordinary statute of limitations. It embodies an essential element of the cause of action created, a condition attached to the right to sue it all." "The liability and the remedy are created by the same statute, and the limitations of the remedy are therefore to be treated as limitations of the right." The Harrisburg, 119 U. S. 199, 214, 7 Sup. Ct. 140, 30 L. Ed. 358; De Martino v. Siemon, 90 Conn. 527, 528, 97 Atl. 765; Radezky v. Sargent, 77 Conn. 110, 114, 58 Atl. 709. It follows that the statutory provision or provisions prescribing the limitation must be strictly observed if liability is to attach to the claimed offender. Failure to show such observance results in a failure to show the existence of a good cause of action. De Martino v. Siemon, 90 Conn. 527, 529, 97 Atl. 765; Radezky v. Sargent, 77 Conn. 110, 113, 58 Atl. 709. If the act of 1903 stood by itself, unaffected by other legislation, there could therefore be no question but that the plaintiff's action was not seasonably begun, and must fail.

We have, however, in section 1127, G. S., a statute which is not to be ignored. It provides, among other things, that if any action commenced within the time limited by law shall fail for the reason, among others, that a judgment of nonsuit is rendered therein, the plaintiff may commence a new action for the same cause or subject of action at any time within one year after the determination of the original action. The language of this section, read in its natural meaning, appears to fit the present situation exactly, and to provide for an extension of the time limitation for the bringing of an action upon section 4 of the act of 1903 under the conditions existing in the present case. The defendant's counsel, however, contend that such is not the fact since, as they urge, section 1127 is auxiliary to statutes of limitation in the strict sense of that term, and its operation confined to preventing the interposition of the bar of such statutes and "does not affect statutes which, though fixing a limitation of time for the bringing of a certain class of actions, are not properly statutes of limitation in the true sense." In support of this contention they invoke the authority of American and English Encyclopedia of Law, vol. 19, pp. 262, 265, from which the above-quoted language is taken and of cases hereinafter noticed in part there cited, from New York, Illinois, Missouri, and Georgia, in which jurisdictions, as in many others, there are statutes in substance resembling our own which for convenience sake we may designate extension statutes. A careful examination of these cases discloses that no one of them, save that from Georgia, lays down any such doctrine as that attributed to them. With the exception of that case and one of the Illinois cases all of them were expressly decided upon the strength of a provision of the law in the respective jurisdictions in terms exempting the action under consideration from the operation of the extension statute.

The New York case, for example, was one brought under a statute authorizing the recovery of damages for property injured or destroyed in consequence of a mob or riot, provided that action therefor be brought within three months after the loss or injury. The pending action was not brought within the three months, but a prior action for the same cause had been. A section of the Code, forming a part of the chapter in which was the extension provision, excepted from the operation of the provisions of that chapter all cases where a different limitation from that therein provided was specifically prescribed by law, or a shorter one by the written agreement of the parties. N. Y. Ann. Code 1889, §§ 405, 414. The Court of Appeals said of this section that in its enactment "the Legislature obviously had it in view to except those particular and special remedies by action, which they had the power to allow, and to leave themselves free to attach such conditions as to limitation of time as they saw fit," and for that reason and that alone held, as had the Appellate Division of the Supreme Court for like reason, that the extension statute was not applicable to the pending action brought under a statute entirely outside of the chapter referred to. Hill v. Supervisors, 119 N. Y. 344, 347, 23 N. E. 921; Id., 53 Hun, 194, 197, 6 N. Y. Supp. 716.

In L. S. & M. S. R. E. Co. v. Dylinski, 67 Ill. App. 114, the situation presented was a very similar one. The second action was held not to have been commenced in time for the reason that the extension statute was, by its terms, confined in its application to actions specified in a certain act of which the pending action was not one. 67 Ill. App. 116.

The decision in the second Illinois case referred to was placed upon a different ground, but not upon the proposition advanced by the defendant's counsel. In that case (Peacock v. Churchill, 38 Ill. App. 634) the plaintiff had presented a bill in chancery to test the validity of a will more than three years...