Sanger v. City of Bridgeport

• Decision Date: 08 April 1938
• Citation: 124 Conn. 183,198 A. 746
• Court: Connecticut Supreme Court
• Parties: SANGER v. CITY OF BRIDGEPORT.

198 A. 746

124 Conn. 183

SANGER v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

April 8, 1938

Appeal from Superior Court, Fairfield County; Carl Foster and Earnest C. Simpson, Judges.

Action by Albert Sanger, administrator of the estate of Esther Sanger, against the City of Bridgeport to recover damages for the death of plaintiff's intestate, alleged to have been caused by a defective sidewalk, wherein a demurrer to the complaint was overruled and a demurrer to plaintiff's reply to the answer and special defenses was sustained and plaintiff failing to plead further, judgment was rendered for defendant, from which plaintiff appeals.

Error and case remanded with directions to overrule the demurrer.

Theodore E. Steiber, of Bridgeport, for appellant.

Harry Schwartz, of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

HINMAN, Judge.

The original plaintiff, Esther Sanger, died after the commencement of the action. Her administrator was substituted as plaintiff and filed a supplemental complaint, including an allegation that ‘ Esther Sanger gave the defendant notice of said defective sidewalk in accordance with law.’ The defendant alleged in a special defense that no notice was given other than one quoted therein which patently was deficient in respect to description of the claimed injuries and the place of occurrence. The plaintiff's reply admitted that no other notice was given, but alleged that it was prepared by an assistant to the city clerk of Bridgeport, upon whom the plaintiff relied for its preparation and to whom was given all essential facts which were necessary for a notice sufficient to the requirements of the statute, General Statutes, § 1420, and by a later amendment, that the Legislature by special act validated the notice. To this amended reply the defendant demurred on grounds, all of which were sustained, asserting the necessity of notice complying with the requirements of the statute, lack of waiver or estoppel arising from the giving of information to and preparation of notice by the assistant to the city clerk, and that the special act relied on is unconstitutional and invalid. The first two grounds are sound (Nicholaus v. Bridgeport, 117 Conn. 398, 167 A. 826) and are decisive, unless the insufficiency of the notice could be and was cured by the validating act, 22 Special Acts 1935, No. 466, p. 298, relied on in the amended reply. The constitutionality of this act is the issue on this appeal.

While the act is clumsily worded, the intent sufficiently expressed by it is to obviate the deficiencies in the notice and notwithstanding them, render it sufficient to maintain the action, which had been commenced in September, 1933. The respects in which the defendant claims it invalid are that it violates sections 1 and 2 of article First of the Constitution of this state by granting the plaintiff an exclusive privilege, and in denying the defendant and others similarly situated with the plaintiff ‘ remedies by due course of law,’ also, that it deprives them of property without due process of law and of the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. The Superior Court sustained the claim that it violates the equal protection clause.

The effect of the provisions of the ordinary validating act is ‘ to make legal and regular that which was illegal and irregular, or to make valid and obligatory an instrument which because of some defect was invalid and inoperative.’ Mazurkiewicz v. Dowholonek, 111 Conn. 65, 69, 149 A. 234, 236. Remedial statutes may be retrospective in operation provided they do not impair contracts or disturb absolute vested rights, but only go to confirm rights already existing and in furtherance of the remedy, and by curing defects afford or add to the means of enforcing existing rights or obligations. If the irregularity sought to be cured consists in a mode or manner of doing of some act which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law. 2 Cooley, Constitutional Limitations, 8th Ed., p. 775; 11 Am.Jur. § 381, p. 1211. When the object is to correct an innocent mistake and remedy a resulting impediment to the enforcement of an obligation of one party to another if the effect is to promote justice the law should be sustained unless it conflicts with vested rights. Mechanics' & W.-M. Mut. Savings Bank & Bldg. Ass'n v. Allen, 28 Conn. 97, 102; Cooley, Op. Cit., pp. 781, 782. What the Legislature may prescribe it may dispense with, and it may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights have not intervened. Whittelsey Co. v. Windsor Locks, 90 Conn. 312, 315, 97 A. 316; 11 Am.Jur. § 381, p. 1211; Montgomery v. Branford, 107 Conn. 697, 704, 142 A. 574; Daly v. Fisk, 104 Conn. 579, 584, 134 A. 169; Goshen v. Stonington, 4 Conn. 209, 10 Am.Dec. 121.

The notice prescribed by section 1420 of the General Statutes is a condition precedent imposed by the Legislature upon the right to obtain redress, through maintenance of an action at law, for injuries caused by a defect in a highway. Shalley v. Danbury & B. H. Ry. Co., 64 Conn. 381, 387, 30 A. 135; Nicholaus v. Bridgeport, supra, 117 Conn. 398, 401, 167 A. 826. The requirement as to notice and the form and content thereof was a creation of the legislative will which did not affect the obligation or liability of the municipality imposed in the same section of the statute, but conditioned maintenance of an action to enforce that liability upon the giving of the notice. As the General Assembly might have omitted to prescribe or provide for such a notice, it was at liberty to change and liberalize the requirements or dispense with them entirely. Section 2020 of the General Statutes of 1902, as amended by chapter 168 of the Public Acts of 1909, contained the same provision requiring notice as is here involved. In 1917, Public Acts, c. 66, this section was amended by adding what is now the last sentence of section 1420 of the General Statutes of 1930: ‘ No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury, or in stating the time, place or cause of its occurrence if it shall appear that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.’ This amendment took effect upon its passage and was made applicable to pending cases, but its validity was sustained in Schmidt v. Manchester, 92 Conn. 551, 555, 103 A. 654.

Moreover, municipalities, as political subdivisions of the state, created for public purposes and having their powers, rights, and duties conferred and imposed by the state through the Legislature, are subject to its will and liable to have any such rights or duties modified or abolished by it, and not to be regarded as thereby...