I am unable to agree with either the reasoning or the result of the majority opinion. The plaintiff's sole right of action was that created by 1420. This expressly prescribes that either the action must be brought or the notice given "within ten days" of the occurrence of the injury, and this is a condition precedent to any right of recovery. Nicholaus v. Bridgeport, 117 Conn. 398, 401,167 A. 826; Crocker v. Hartford, 66 Conn. 387, 391,34 A. 98. As this court emphatically stated in referring to 2020 of the General Statutes, Revision of 1902, the forerunner of the present act, until the prescribed condition is met no right of action under the act exists. "The statute recognizes no equivalents, and it is not competent for the courts to extend the right given beyond the limits fixed by the General Assembly, or to create a right not contemplated by the legislature and contrary to its peremptory mandate." Forbes v. Suffield, 81 Conn. 274, 275, 70 A. 1023; see also Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 397,99 A. 1048. In the instant case, so far as the facts are concerned, aside from the circumstance that the plaintiff had already had nine days in which to act, that the tenth day was Christmas day gave rise to no impossibility of his meeting the condition prescribed in the statute. The specific question presented therefore, is whether, under these circumstances, this court can properly construe the words "within ten days," as used in the statute, to mean "within eleven days," its language being neither ambiguous nor uncertain. *Page 403
No authority is given for so doing. All four of the cases relied upon by the majority which go furthest in support of its position are clearly distinguishable as involving impossibility of performance, which, as stated, is not present in the case before us. Thus in Avery v. Stewart and Sands v. Lyon, where a payment as prescribed fell due on Sunday, it was held that since the performance of the contract on Sunday "would be an unlawful act" payment on the day following would suffice; and in Sommers v. Adelman and Alderman Bros. Co. v. Westinghouse Air Brake Co., where the final day of the period prescribed for an act essential to taking an appeal fell on Sunday, it was held it could be done the next day, because on Sunday the appellant, under Public Acts, 1909, Chapter 148, was "powerless" to do it. Furthermore, as to these cases, not only did the statute (791 of the 1902 Revision) expressly authorize an extension of the time prescribed but the court in its opinion specifically differentiated the situation then before it from that arising under a statutory provision of the nature now under consideration.
The principal reason advanced for the majority's conclusion is that, since 6565 designates Christmas as a holiday and the final day of the period prescribed by 1420 for giving notice fell on Christmas day, it becomes necessary to determine which of the conflicting intents of the legislature so expressed shall prevail. The fallacy of the argument is that no conflict in fact does exist. Granting the possible or potential greater inconvenience to the plaintiff of serving notice on a holiday, under certain circumstances, which the majority opinion suggests, this by no means constitutes impossibility, which alone could give rise to the need to "harmonize" the statutes relied upon by the majority. That civil process may be served at any time on holidays and on Sunday, in all actions, before sunrise *Page 404 and after sunset is sufficient indication that the legislature intended that the notice in question could and should, if circumstances required, be served on either a holiday or Sunday. That no conflict of legislative intent is manifested by the two statutes and that the General Assembly intended no exception as to 1420 are further evidenced by numerous enactments where an express exception as to Sunday or a holiday is provided. See General Statutes, 1990, 4317, 4402, 4463.
It is therefore my conclusion that the court did not err in sustaining the demurrer and in entering judgment for the defendant.
In this opinion JENNINGS, J., concurred.