Town of Waterford v. Elson

• Decision Date: 15 November 1906
• Docket Number: 26.
• Citation: 149 F. 91
• Parties: TOWN OF WATERFORD v. ELSON.
• Court: U.S. Court of Appeals — Second Circuit

149 F. 91

TOWN OF WATERFORD v. ELSON.

No. 26.

United States Court of Appeals, Second Circuit.

November 15, 1906

D. G Perkins, for plaintiff in error.

W. S Schutz, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

TOWNSEND Circuit Judge.

The plaintiff, as administrator, brought this action to recover damages for death of his intestate caused by injuries alleged to have resulted through a defective highway, under section 2020 of the General Statutes of Connecticut 1902. Said section provides as follows:

'Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action for any such injury shall be maintained against any town, city corporation, or borough, unless written notice of such injury and a general description of the same, and of the cause thereof, and of the time and place of its occurrence, shall, within sixty days thereafter, * * * be given to a selectman of such town.'

Defendant appeared and pleaded in abatement of the writ, on the ground that the copy was not attested by the officer who served it. The plaintiff replied that the copy was served by the marshal, and was attested by the clerk of the Circuit Court to be a true copy of the writ and complaint. To this replication defendant demurred.

The question thus raised is a jurisdictional one. A majority of the court is of the opinion that under the construction adopted in this Circuit of the fifth and sixth sections of the Evarts act the question of the jurisdiction of the court below is not before us for review. U.S. v. Lee Yen Tai, 113 F. 465, 51 C.C.A. 299; Fisheries Co. v. Lennen, 130 F. 533, 65 C.C.A. 79. See, also, Sun Printing & Pub. Co. v. Edwards, 194 U.S. 377, 24 Sup.Ct. 696, 48 L.Ed. 1027. Thereafter after the defendant demurred to the complaint, on the ground that the notice given by plaintiff did not describe the place of the injury with the certainty required by said statute.

The material portions of said notice are as follows:

'To the Selectmen of the Town of Waterford in the State of Connecticut: I hereby give notice that as administrator of the estate of Jacob Elson, deceased, I have a claim for damages amounting to twenty thousand dollars against said town of Waterford for negligence on the part of said town which resulted in the injury of the said Jacob Elson on the sixteenth day of September, 1903, and in his death. * * * (Here followed a statement of the injuries.) These injuries were caused by the negligence of said Town in permitting and allowing at that time and for a long time prior thereto the limb of a tree to extend out over the highway at a dangerously low height which said limb struck the said Elson who was driving along said highway and hurled him to the ground inflicting the injuries aforesaid. The time said injuries were inflicted was about 7:30 a.m., September 16th, 1903. The place was on the Great Neck Road so-called near the Hedden Place so-called, in said town of Waterford.'

The courts of the state of Connecticut, construing the provisions of said section as to notice, have held that its purpose is 'that of giving sufficient information to enable the town authorities to properly investigate the claim. ' Dean v. Sharon, 72 Conn. 667, 673, 45 A. 963. In Breen v. Cornwall, 73 Conn. 309, 312, 47 A. 322, the place of the injury was described as the road 'familiarly called the 'Cook Road,' near the ruin of an old house, we were thrown out of our wagon on that ledge of rocks in the road. ' The notice was held sufficient. There the court said:

''The sufficiency of the notice is to be tested with reference to the purpose for which it is required. If sufficient for that purpose it is a good notice.' Budd v. Meriden Electric R. Co., 69 Conn. 272, 285, 37 A. 683. The place, cause, and nature of the injury are sufficiently stated in the notice when they are 'truly described with such a reasonable degree of certainty that ordinary men in the exercise of ordinary intelligence under the circumstances can learn from the notice the nature of the injury, and be able to ascertain by the use of ordinary diligence the place where it occurred and the cause that occasioned it.' Gardner v. New London, 63 Conn. 267, 272, 28 A. 42; Budd v. Meriden Electric R. Co., supra; Dean v. Sharon, 72 Conn. 667, 674, 45 A. 963.

Much reliance is placed by defendant upon the case of Biesiegel v. Seymour, 58 Conn. 43, 19 A. 372. There the place was described as 'a place in and upon said road near the former residence of Lyman Clinton,' and the notice was held to be insufficient.

But it appears from the opinion of the court in said case that 'no reference is made in the notice to any visible object to mark the place where the accident happened. ' See, also, Lilly v. Town of Woodstock, 59 Conn. 219, 22 A. 40.

In the case at bar counsel for defendant has assumed that the notice was necessarily insufficient upon its face. In this respect we think he was in error. Here there was notice of a visible object to mark the place, the limb of a tree. It does not appear, and is not to be presumed, that there were limbs from other trees thus extending out over the highway at a dangerously low height on said road near the Hedden Place, nor that there were any other trees near said place, nor that, for any other reason, the notice failed to contain 'for all the practical purposes to be subserved * * * a reasonably sufficient general description of the * * * place of occurrence. ' Wood v. Stafford Springs, 74 Conn. 437, 441, 51 A. 129. We think, in view of the peculiar conditions existing in Biesiegel v. Seymour, supra, and of the later decisions of the Supreme Court of Connecticut construing said statute, that this demurrer was properly overruled.

A more serious question is presented by the defendant's motion for judgment veredicto non obstante, on the ground that:

'Upon the facts alleged in said complaint, said action is based on section 2020 of the General Statutes of the state of Connecticut 1902, and is a penal action, and under the laws of the state of Connecticut, and especially chapter 193 of the Public Acts of 1903, the cause of action set forth in said complaint did not survive to and does not exist in favor of the administrator of said Jacob Elson.'

Section 2020 is as follows:

'Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair.'

The material portions of said chapter 193, p. 149, are as follows:

'Sec. 1. No cause or right of action shall be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of such deceased person. * * * '

'Sec. 3. The provisions of this act shall not apply to any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto; nor to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants; nor to any civil action upon a penal statute.

'Sec. 4. In all actions surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally in fault for such injuries just damages not exceeding five thousand dollars; provided, that no action shall be brought upon this statute but within one year from the neglect complained of. * * * '

'Sec. 6. Sections 1094 and 1131 of the General Statutes and all acts and parts of acts inconsistent herewith are hereby repealed.'

Section 1094 provided as follows:

'The executor or administrator of any person whose death shall have been caused by negligence, may recover of the party legally in fault just damages, not exceeding five thousand dollars.'

Section 1131 provided that:

'No civil action or proceeding shall abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of such decedent. * * * The provisions of this section shall not apply to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto; nor to any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants; nor to any civil action upon a penal statute.'

In Reed v. Northfield, 13 Pick. 94, 23 Am.Dec. 662, the Supreme Court of Massachusetts considered a statute giving a cause of action against a town for injuries resulting from a defective highway, and held as follows:

'In the present case we think the action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for

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