LoRusso v. Hill

95 A.2d 698, 139 Conn. 554, 1953 Conn. LEXIS 165

• Court: Supreme Court of Connecticut
• Decided: March 3, 1953
• Status: Published

Opinions

O’Sullivan, J.

This action was brought to recover damages for the death of the plaintiff’s decedent. A demurrer to the complaint was sustained and, from the judgment thereafter rendered, the plaintiff has appealed.

The following facts, conceded for the purpose of testing the demurrer, will he an ample basis for a discussion of the legal question raised by the appeal. The plaintiff’s decedent was killed on August 21, 1951, by the overturning of his milk truck on a state highway which was under the defendant’s supervision. The sole proximate cause of his death was the defective condition of the highway. The defendant had known of this condition for a long time but had neglected to remedy it.

On October 9, 1951, a writ, issued on the present plaintiff’s behalf and returnable to the Superior Court on the first Tuesday of November, 1951, was served on the present defendant in his capacity as state highway commissioner. Accompanying the writ was a complaint alleging the time and place of the accident and describing in detail the defect in the highway and the injuries which it caused. A demurrer to the complaint in that case was sustained on the ground that the plaintiff did not allege the giving of notice to the commissioner. Lorusso v. Hill, 17 Conn. Sup. 419. On February 5, 1952, the plaintiff withdrew that action and, on the same day, brought the instant one. The complaint now before us alleges that notice was given to the commissioner by the service upon him of the complaint in the original action. The sole question on this appeal is whether that service was a sufficient compliance with the statutory provision requiring notice.

The complaint in the case at bar purports to state' a cause of action under General Statutes, § 2201. This section provides, in part, that, in case of the death of a person injured on a state highway through a defective condition which exists because of the neglect or default of the state or of any of its employees, his administrator may bring a civil action against the highway commissioner to recover damages for the injuries sustained. The statute then continues: “No such action shall be brought . . . unless 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 have been given within sixty days thereafter to the highway commissioner.”

This requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose was merely to furnish the commissioner with such information as would enable him to make a timely investigation of the facts upon which a claim for damages was being made. Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152. If the legislature had prescribed a specific method for a claimant or his administrator to pursue when giving notice, that method would have been exclusive. The statute, however, is silent on the subject. No modus operandi is provided for, even in broad outlines. It follows that whether the service of the original complaint was a notice within the statute is to be determined with reference to the purpose for which the giving of notice is required.

The word “notice” may be defined as that which imparts information to the one to be notified. See Webster’s New International Dictionary (2d Ed.). It was in this, and not in a technical, sense that the legislature used the word. The defendant concedes that the contents of the original complaint furnished him with all of the required data listed in the statute. He received notice, then, because he had been given the information which it was the duty of the plaintiff to supply.

The statute prohibits the institution of any action unless notice “shall have been given.” The use of the future perfect tense indicates the necessity of completing the act of giving notice before suit is brought. Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 239, 56 A.2d 519. For this reason, the original complaint could not serve simultaneously as both complaint and notice. When the original action was withdrawn, the complaint forfeited its status as a complaint, but it did not lose its distinctive character as a notice. It always had been a notice although incapable of use as such in the former action because' it did not antedate the institution of that action. For this reason it is inaccurate to say, as the defendant does, that the use of the original complaint as a. notice results in the creation, after the sixty-day period has passed, of a cause of action that had not existed during that time. Since the original complaint was a notice, the cause of action arose when the commissioner was served in the original action. The demurrer to the complaint in that action was properly sustained, not because a cause of action did not exist, but because none was alleged. In the absence of anything in the statute to the contrary, the original complaint may now be relied upon as a sufficient notice to the defendant.

There is error, the judgment is set aside and the ease is remanded with direction to overrule the demurrer.

In this opinion Jennings, Baldwin and Inglis, Js.,. concurred.