177 A.2d 467 | Conn. Super. Ct. | 1961
This is an action against the highway commissioner under § 13-87 of the General Statutes for injuries caused by a defective sidewalk. To it, he demurs on the ground that the notice given pursuant to the statute is defective because it does not set forth a general description of the injury. As to this issue the notice alleges: "Mrs. Dunn received an injury to her knee necessitating medical treatment and confining her to her bed and home for many days."
There are no discussions in the cases involving this section which settle this question. There are *114 several concerning the similar provision requiring a general description of the injury under § 13-11, which creates an action against the municipality therefor. These latter have progressively narrowed the question of sufficiency of that general description to the razor's edge. In considering whether or not they determine by analogy the language of § 13-87, the so-called "saving clause" must be kept in mind. This provision of § 13-11 reads: "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 appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
Where a notice fails to give any description whatever of the injury claimed, the provisions referred to (i.e. § 13-11) cannot avail to validate it. While this is so, the saving clause does serve to obviate inaccuracies in the description of an injury. Flynn v.First National Bank Trust Co.,
The question whether this notice (under § 13-87) failed entirely to meet the requirements of the statute as to a general description of the injury, its cause, and the place and time of its occurrence is one of law for the court. The test is whether the notice meets the requirement that it "`furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.'"Morico v. Cox,
The cause of action created by § 13-87 is a pure creature of statute, wholly unauthorized by the common law; Wethersfield v. National Fire Ins. Co.,
Under a strict interpretation, it must be held that the notice in the case at bar utterly fails in its purpose as the test is set forth in Morico v. Cox, supra. See Schaap v. Meriden, supra. A mere statement of "an injury to her knee" is not that "general description of the same" which the statute makes a condition precedent to the maintenance of an action under it. Marino v. East Haven, supra, 579. It "would include any injury whether it was very trivial or very serious and whatever its nature."Main v. North Stonington, supra. It does not furnish a reasonable guide to the commissioner in the conduct of his inquiries for the preservation of his interests. Morico v. Cox, supra.
The demurrer is sustained.