Doucette v. Bouchard , 28 Conn. Super. Ct. 460 ( 1970 )

The complaint alleges that the plaintiff's decedent was injured by the defendants' negligence on October 4, 1968; that he died on November 15, 1968; and that he suffered "extreme pain, suffering and mental anguish" before his death. The complaint was served on November 13, 1969, according to the officer's return. The defendants have demurred to the complaint on the ground that the action was not brought within the one-year period limited by General Statutes § 52-555 for wrongful death actions.¹ For the purpose of this proceeding, the plaintiff has agreed that the demurrer may be sustained if the one-year limitation is applicable. See Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170,171 (parties may agree that complaint sets forth all facts relevant to the question whether the Statute of Limitations bars the action).

At common law, a person's death had two consequences with respect to a claim for personal injuries. First, death abated any pending action to recover for those injuries, and suit could not be brought by the decedent's personal representative to recover for those injuries. Second, no action could be brought for damages for destruction of human life. Perlstein v. Westport Sanitarium Co., 11 Conn. Sup. 117,119. These common-law rules have been changed by legislation which is now General Statutes §§ 52-555 and 52-599.² The relationship between these two statutes has been the subject of several cases, one of which (Burkhardt v. Armour Co., 115 Conn. 249,253) was overruled and then reaffirmed (see Foran v. Carangelo, 153 Conn. 356, 360), and two of which(Porpora v. New Haven, 122 Conn. 80, 95, andGiambozi v. Peters, 127 Conn. 380, 386) have been overruled (see Foran v. Carangelo, supra). It is worthy of note that the overruling of Porpora andGiambozi was predicted twenty-four years before they were overruled in Foran v. Carangelo. SeePerlstein v. Westport Sanitarium Co., supra, 128, which has an excellent discussion of the distinction between the two statutes.

In Foran v. Carangelo, supra, 359, 360 n. 2, the Supreme Court reaffirmed the purpose of General Statutes § 52-555 to be to change the common-law rule that damages would not be awarded for the destruction of human life. "In other words, death and its direct consequences can constitute recoverable elements of damage only if, and to the extent that, they are made so by statute." Foran v. Carangelo, supra, 359. If a personal representative seeks a recovery for both death and antemortem injuries, damages for both must be claimed in the same action(Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669), but the antemortem-damages claim does not depend on General Statutes § 52-555 for its validity.

The purpose of General Statutes § 52-599 is to prevent "an action or right of action from being lost, under the common-law rule, by the death of the possessor." Foran v. Carangelo, supra, 360 n. 2. Under this statute, the cause of action which the decedent had, while he was alive, for his antemortem injuries, survives to his personal representative. See Floyd v. Fruit Industries, Inc., supra, 668. So, if, for example, the plaintiff's decedent had sustained injuries and died thereafter from natural causes, his personal representative could prosecute the action for the personal injuries. In that case, under the provisions of General Statutes § 52-594,³ the personal representative would be allowed one additional year from the date of the decedent's death to institute the action, assuming that the limitation period had not expired by the time of the decedent's death.

In the instant case, the complaint contains a claim for damages for antemortem pain and suffering. As noted previously, that claim exists independently of General Statutes § 52-555. The requirement in that statute that the action be instituted within one year from the date of injury applies only to an action for such damages as would not have been recoverable at common law, i.e. damages resulting from the destruction of human life. Since the instant action was not instituted within one year from the date of the injury, the one-year limitation in General Statutes § 52-555 is available as a defense to a claim for such damages. Since antemortem injuries are specifically alleged in the instant case, however, neither the one-year limitation in General Statutes § 52-555 nor the applicable one-year limitation in General Statutes § 52-584⁴ bars the action; the limitation in the former statute does not apply to a claim for antemortem damages, and the one-year period in the latter statute is extended by General Statutes § 52-594.

The demurrer is overruled.