Giambozi v. Peters

The plaintiff filed a substituted complaint on February 29, 1936, in two counts. The defendant answered on June 9, 1936.

By way of. special defense to the first count the defendant pleaded that the action was not brought within one year from the neglect complained of.

An amended complaint, adding a third count, was filed June 23, 1936, and the defendant answered November 8, 1937.

The plaintiff demurred on October 31, 1938. There are three grounds of demurrer. The second and third have been withdrawn. There is left the demurrer to the special defense to the first count above referred to.

The complaint alleges, distinctly and unequivocally, that the death of the plaintiff’s intestate was caused “solely by the negligence of the defendant.” The specifications of negligence follow thereafter.

Upon this allegation the action is clearly barred by the statute (Gen. Stat. [1930] §5987).

The complaint nowhere alleges that the defendant is a physician but even if such allegation could be implied it seems clear that the statute limiting an action for malpractice to two years (Gen. Stat. [1930] §6016) in no wise conflicts with said section 5987. If death results from the malpractice the action must be brought within a year. It would seem that this construction is clear.

The demurrer must be overruled.