Peck v. Fair Haven & W. R. Co.

• Decision Date: 12 August 1904
• Citation: 77 Conn. 161,58 A. 757
• Parties: PECK v. FAIR HAVEN & W. R. CO.
• Court: Connecticut Supreme Court

58 A. 757

77 Conn. 161

PECK

v. FAIR HAVEN & W. R. CO.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

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

Action by James H. Peck against the Fair Haven & Westville Railroad Company, From a judgment for defendant, plaintiff appeals. Reversed.

Talcott H. Russell and Edwin S. Thomas, for appellant.

Harry G. Day, for appellee.

HALL, J. The complaint in this action, dated December 18, 1903, alleges that on the 20th of July, 1903, the plaintiff's wife received personal injuries from the negligent operation by the defendant's servants of its electric cars, which have rendered her incapable of performing her household duties and services in the plaintiff's household, and in consequence of which the plaintiff has lost her society, and has been put to expense in procuring additional service in his household, and medical attendance and medicines for his wife. The complaint further alleges that a written notice containing a general description of the injuries sustained by Mrs. Peck, and of the time, place, and cause of their occurrence, as nearly as the same could be ascertained, was served upon the defendant within four months of the date of the collision, in accordance with section 1130 of the General Statutes of 1902. The notice thus referred to, which appears upon the record, and is treated as a part of the complaint, is dated September 16, 1903, and served September 17th, and is signed, "Mrs. James H. Peck, by Edwin S. Thomas, Her Attorney." It describes the physical injuries sustained by Mrs. Peck on the 20th of July, 1903, in a collision of the defendant's cars caused by the negligence of the defendant's servants, and the place where the accident occurred, and states that Mrs. Peck intends to claim damages from the defendant for said injuries. The defendant demurred to the complaint upon the ground that it appeared that no written notice containing a general description of the injury to the plaintiff, and of the time, place, and cause of its occurrence, as nearly as the same could be ascertained, was given to the defendant within four months after the neglect complained of. This demurrer was sustained by the trial court, and judgment rendered for the defendant for costs.

The only question raised by the appeal to this court is whether, under section 1130 of the General Statutes of 1002, the plaintiff can maintain this action without other notice to the defendant than that given by his wife, as above described. Section 1130, headed "Four Months' Notice Required in Actions against Railways," reads as follows: "No action to recover damages for an injury to, or for the death of, any person, or for an injury to personal property caused by negligence, shall be maintained against any electric, cable or street railway company unless written notice containing a general description of the injury, and of the time, place, and cause of its occurrence, as nearly as the same can be ascertained, shall have been given to the defendant within four months after the neglect complained of, unless the action itself is commenced within said period of four mouths." This section does not provide that the notice shall contain a statement of the character or amount of the claim of the injured person for damages, nor that a claim for damages is, or is intended to be, made; nor is it expressly provided that the notice must be given by the injured person. In these respects our statutes requiring notice as a condition precedent to the maintenance of actions against municipalities and railroad companies for injuries caused by their negligence differ from those of most of the states, the decisions of the courts of which have been cited by counsel. It is true that the law was originally passed in 1805, and as amended in 1897 (chapter 176, p. 537, of the Public Acts of 1895; chapter...