MacLeod v. Town of Milford
| Decision Date | 10 April 1963 |
| Citation | 25 Conn.Supp. 70,196 A.2d 604 |
| Court | Connecticut Superior Court |
| Parties | Frances MacLEOD, Administratrix (ESTATE of Jane F. MacLEOD) v. TOWN OF MILFORD et al. |
Samuel Reich and Maurice J. Magilnick, Bridgeport, for plaintiff.
Goldstein & Peck, Bridgeport, for defendant.
The first and second counts of plaintiff's complaint seek recovery against an employee of the town of Milford and the town itself, respectively, under § 7-465 of the General Statutes, as amended, providing a statutory right of recovery, under certain express conditions, against a municipality for damage arising out of the negligent actions of its employees while in the performance of their duties.
The first ground of the demurrer, addressed to both first and second counts, is based upon plaintiff's failure, in each count, to allege that her decedent was in the exercise of due care at the time of her death. The necessity of such an allegation has been found in this specific type of case in the two recent decisions of Barkley v. Bristol, 23 Conn.Sup. 133, 177 A.2d 514, and Cagianello v. Letare, 23 Conn.Sup. 130, 177 A.2d 517. This requirement seems implied by our Supreme Court in Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856, 859, where it states that an action under this particular statute 'should be in two counts: the first, alleging the facts essential to the legal liability of the employee, and the second, the facts essential to the legal liability of the municipality under the statute.' The failure of plaintiff to allege this essential fact in each count renders the counts insufficient as a matter of law, since the form of the complaint indicates that the claim against the employee as well as the town is based upon the statute rather than upon the common law.
The second and third grounds of the demurrer are concerned with the italicized words of the following pertinent portion of § 7-465 as amended: ...
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McLean v. City of Spirit Lake
...577,192 A. 225, 103 A.L.R. 295 (Conn., 1935); Bigelow v. City of Los Angeles,141 Cal. 503, 75 P. 111 (1904); MacLeod v. Town of Milford, 25 Conn.Sup. 70, 196 A.2d 604 (1963); Ghiozzi v. City of South San Francisco, 72 Cal.App.2d 472, 164 P.2d 902 (1946). See also: 18 McQuillin, Municipal Co......
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...v. Henninger, 173 Conn. 52, 376 A.2d 406 (1977); Derfall v. West Hartford, 25 Conn.Sup. 302, 203 A.2d 152 (1964); MacLeod v. Milford, 25 Conn.Sup. 70, 196 A.2d 604 (1963); Wolfe v. Branford, 22 Conn.Sup. 239, 167 A.2d 924 (1960). The giving of notice, therefore, does not equal an action or ......
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Derfall v. Town of West Hartford
...of the statute as to demand and notice.' That the present complaint is otherwise fatally defective is obvious. See MacLeod v. Milford, 25 Conn.Sup. 70, 196 A.2d 604; Shaw v. Industrial Safety Supply Co., 23 Conn.Sup. 149, 178 A.2d 284; Cagianello v. Letare, 23 Conn.Sup. 130, 177 A.2d 517; B......
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