de Martino v. Sieman

• Decision Date: 02 June 1916
• Citation: 90 Conn. 527,97 A. 765
• Court: Connecticut Supreme Court
• Parties: DE MARTINO v. SIEMAN.

97 A. 765

90 Conn. 527

DE MARTINO

v. SIEMAN.

Supreme Court of Errors of Connecticut.

June 2, 1916.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Angeline De Martino, administratrix, against Carl F. Sieman. Judgment for the defendant on demurrer, and plaintiff appeals. Affirmed.

John C. Chamberlain, of Bridgeport, for appellant. Edward K. Nicholson, of Bridgeport, for appellee.

THAYER, J. This is an action by an administratrix brought to recover for injuries resulting in the death of her intestate caused as alleged by the negligence of the defendant. The injuries are alleged to have been inflicted, and the death to have occurred almost immediately, on October 29, 1910. The action was brought by writ dated May 3, 1915, to the June term, 1915, of the superior court in Fairfield county. A demurrer was filed to the complaint upon the ground, among others, that the action was not commenced within one year from the date of the injury and negligence complained of. The demurrer was sustained, and judgment rendered for the defendant The court's action in sustaining the demurrer is assigned as error.

The action is upon a statute. The cause of action alleged is one created by statute whereby a liability or penalty is imposed upon a person who by his negligence causes the death of another. The right of action is given to the administrator of the person injured for the benefit of the beneficiaries named in the statute, provided the action is commenced within one year. This is stated in Radezky v. Sargent Co., 77 Conn. 110, 58 Atl. 709, where the history of the statute is given, and we held that a complaint which, like the one now before us, alleged that the defendants' negligence caused the intestate's death more than one year before the commencement of the action, did not state a good cause of action.

The general rule is that, where a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone. The Harrisburg, 119 U. S. 199, 214, 7 Sup. Ct. 140, 30 L. Ed. 358; Negaubauer v. Gt. Northern Ry. Co., 92 Minn. 184, 185, 99 N. W. 020, 104 Am. St. Rep. 674, 2 Ann. Cas. 150; Rodman v. Missouri Pac. Ry. Co., 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704; Hanna v. Jeffersonville R. R. Co., 32 Ind. 113, Wood, Lim. §§ 9, 194....