Miner, Read & Garrette v. McNamara

• Citation: 74 A. 933,82 Conn. 578
• Court: Supreme Court of Connecticut
• Decision Date: 17 December 1909
• Parties: MINER, READ & GARRETTE v. McNAMARA et al.

74 A. 933

82 Conn. 578

MINER, READ & GARRETTE

v. McNAMARA et al.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Miner, Read & Garrette against Dennis E. McNamara and others. A demurrer to a defense of the statute of limitations (Gen. St. 1902, § 1119, as amended by chapter 149, p. 114, Pub. Acts 1903), filed by defendant McNamara, was overruled, and judgment rendered in favor of that defendant, from which the plaintiffs appealed. No error.

George D. Watrous and Harrison T. Sheldon, for appellants. Robert E. De Forest and John J. Cullinan, Jr., for appellee McNamara.

PRENTICE, J. This complaint has already been before us upon an appeal from a judgment rendered in favor of another of the defendants, who successfully demurred to it. Miner v. McNamara, 81 Conn. 690, 72 Atl. 138. Its averments are there fully summarized. Its reappearance results from a judgment since rendered in favor of another defendant, as the consequence of his defense that the injury or neglect complained of did not occur within one year prior to the commencement of the action, and that the right of action for the cause stated did not accrue within that period of time. The plaintiffs unsuccessfully demurred to this defense, and judgment for the defendant who pleaded it followed. This defendant was McNamara, the owner of the building and lessor. His codefendants were two parties who were contractors under McNamara for the construction of the building. It was one of these whose contention was before us at the time of the former appearance of the case. The statute whose provisions were thus successfully appealed to by McNamara as a bar to the action is section 1119 of the General Statutes of 1902, as amended by chapter 149, p. 114, Pub. Acts 1903. The plaintiffs insist that this statute is not applicable to the cause of action presented by the complaint, and that section 1111 embodies the limitation which is applicable.

We are spared the necessity of examining the complaint to discover the nature of the cause of action which is set out against McNamara, since we had occasion to pass upon that question when the case was here before. We then held that it was one founded upon negligence. It is now contended, however, that its allegations as related to this defendant are such as would justify a recovery against him upon other grounds, as, for instance, fraud or the breach of an implied warranty. What plausible grounds, questions of pleading apart, there may be for this claim we need not stop to inquire. It is enough to observe that it overlooks the fact that the complaint throughout distinctly rests the plaintiffs' case upon the negligence of the defendants, and that two parties are joined with McNamara as defendants, against whom causes of action of the nature indicated cannot be claimed to be stated. If we may assume that the pleader did in one count join several causes of action, we should scarcely be justified in assuming that he thus joined causes of action not permitted to be joined, and did so in disregard of the prohibition against joining causes of action which did not affect all the parties. It is, however, quite apparent that there was no attempt to state more than one cause of action, and that that was one founded upon negligence. But plaintiffs' counsel by no means rest their contention that the court erred in overruling their demurrer upon this narrow ground alone. They assert the broad proposition that the statute appealed to is not applicable to such a cause of action as their complaint embodies, even though it be one for negligence only. The history of the evolution of the two statutory provisions already referred to is relied upon by them in support of this view, and of their view that it is section 1111 which prescribes the pertinent limitation.

For many years prior to the adoption of the practice act, and reaching back as far as 1821, one provision of our statutes had limited the time for the commencement of actions of trespass on the case to six years next after the right of action should accrue, while another had provided that no action of trespass and no action upon the case for words should be brought but within three years. Rev. St. 1821, pp. 310, 311, §§ 4, 5; Gen. St. 1875, p. 494, tit. 19, c. 18, §§ 6, 7. The revisers in preparing the Revision of 1888 were apparently of the opinion that, since the practice act had abolished the distinctions between the forms of action theretofore recognized, it would be wise to dispense with the use in these statutes of the terms "actions of trespass on the case," "actions upon the case," and "actions of tres-1 ass," and substitute therefor definitional language of equivalent purport For such language to substitute in the former of the two sections as descriptive of actions of trespass on the case it would appear that Swift's Digest was consulted. At least the coincidence exists that the precise language of the unsatisfactory definition there found was adopted in the Revision. Swift's Dig. p. 540. In dealing with the second of these two provisions the use of the words "upon the case" was avoided by a simple expedient, and in lieu of the former words, "No action of trespass," was substituted, "No action for trespass to person or property," so that the provision was made to read, "No action for trespass to person or property, or for slanderous words shall be brought," etc. No change has since been made in these statutes. They became sections 1111 and 1115 of the Revision of 1902.

The changes thus made suggest several interesting queries. All, save one, however, are foreign to our present inquiry. That one is whether or not a cause of action like the present, considered as one founded upon negligence, comes within the language of section 1111. It is apparent from the consideration which we have already given to the history and evident purpose of the changes made in the statutes, and from the scope of common-law actions of trespass on the case as universally and familiarly recognized, that the intent and purport of the section would have been more clearly and unmistakably...