Radezky v. Sargent & Co.
| Decision Date | 12 August 1904 |
| Citation | 77 Conn. 110,58 A. 709 |
| Parties | RADEZKY et al. v. SARGENT & CO. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.
Action by Roch Radezky and others, as administrators, against Sargent & Co. From a judgment for defendant, plaintiffs appeal. Affirmed.
The plaintiffs' intestate, while riding on an elevator owned and operated by the defendant corporation, was thrown to the ground, whereby he was greatly injured, and, as a result of the injuries, died on the same day. The plaintiffs claim that the death of their intestate was due to the negligence of the defendant, and seek in this action to recover damages in accordance with the statute in such case made and provided. In the complaint the plaintiffs allege that the negligence complained of, and consequent death of their intestate, occurred on September 19, 1902, and that they were appointed administrators on October 24, 1902. The writ and complaint is dated October 20, 1903, and returnable to the superior court in New Haven county on November 3, 1903. The defendant demurred because it appears that the action is not brought within one year from the neglect complained of, nor within one year from the date of the alleged injury, nor within one year from the date of the alleged decease of the plaintiffs' intestate. The court (Shumway, J.) sustained the demurrer, and rendered judgment for the defendant. After the demurrer was sustained, and before judgment, the court, upon motion and for cause shown, granted leave to the defendant to file a notice as to the evidence it intended to produce upon a hearing in damages. In the reasons of appeal, the plaintiffs claim that the courterred in sustaining the demurrer, and in granting the defendant leave to file the notice as to a hearing in damages.
Benjamin Slade and Maxwell Slade, for appellants.
John K. Beach and Samuel H. Fisher, for appellee.
HAMERSLEY, J. (after stating the facts). This is an action upon a statute. The cause of action is one created by statute. A liability or penalty is imposed upon the person who by his negligence causes the death of another. The beneficiaries of this liability are the husband or widow and heirs of the person injured, as prescribed in the statute. The right of action is given to the administrator of the person injured, as representing these beneficiaries, provided an action is commenced within a time fixed by the statute. This statutory cause of action was first created in 1853, and the liability imposed was limited to railroad companies. Compilation of 1854, p. 756. In 1877 this statutory liability was extended, and imposed upon any party "legally in fault," provided "that no action shall be brought upon this statute but within one year from the neglect complained of." Pub. Acts 1877, p. 191, c. 78. The statute appears in this form in the Revision of 1888, § 1009, and its substantial provisions remain in force under sections 1094 and 1119 of the Revision of 1902, as re-enacted in 1903. Pub. Acts 1903, p. 114, c. 149; Id. p. 149, c. 193, § 4. Possibly some questions might be suggested as to the legal effect upon this statute of the changes in legislation between 1888 and 1903—especially as to whether the time limit affecting the present case dates from the day of the neglect complained of, or from the death of the injured person. As the injury to the plaintiff's intestate and his death occurred on the same day, that question is Immaterial. The parties raise no question as to the substance of the statute governing this case, and the effect of the changes referred to need not be considered.
The complaint alleges that the plaintiff's intestate was on September 19, 1902, injured by the defendant's negligence, and died, as the result of said injury and negligence, on the same day; that the plaintiffs were appointed administrators of their intestate's estate on October 24, 1902—and is dated October 20, 1903. It therefore appears upon the face of the complaint, read, as it must be, in connection with the writ, that this action upon the statute, which creates a cause of action upon the expressed condition or limitation that an action thereon shall be commenced within the fixed period of one year, was not commenced within one year from the death of the party injured, or of the neglect complained of, but was commenced within one year from the appointment of administrators.
The defendant's demurrer to this complaint presents, in substance, two questions of law: (1) Does the complaint, in alleging that the defendant, by its negligence, caused the death of the plaintiffs' intestate on...
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