Administrator of Whitney v. Town of Clarendon

18 Vt. 252 | Vt. | 1846

Lead Opinion

The opinion of the court was delivered by

Bennett, J.

We think that there was no objection to the defendant’s availing themselves, under the general issue, of the matter offered in defence. In an action on the case any thing may be given in evidence under the general issue, which destroys the right of action. If damages are sought to be recovered for beating the plaintiff’s horse, by means'of which he lost his service, the defendant may well show, under the general issue, that the beating was lawful. Str. 872. Bul. N. P. 78.

The question then arises, does the former recovery destroy the plaintiff’s right of action in this case ? Or in other words, can there be a succession of actions to recover damages resulting from one and the same injury? The injury inflicted upon the person of the son of the plaintiff by the fall of the bridge, by reason of its insufficiency, is one and entire, though there may be a continuation of the damages resulting from that injury. It is contended on the part of the plaintiff, that in the action by the parent, for the loss of service, the gist of the action is the loss of service, and that the parent may have successive actions from time to time, to recover the resulting damages, as it shall suit his pleasure. There should be an end of litigation ; and I should regret it, if the law was so settled, that every fresh damage would give a new cause of action.

In Hodsoll v. Stallebrasse, 39 E. C. L. 94, it was held, that both the injury and damage must concur, to give a right of action, and that the damages were not the sole cause of action. That was an action by the master for the loss of the service of his apprentice, occasioned by the bite of a dog; and it was contended, that the action was not grounded upon the injury, but upon the resulting damage. But the court directed prospective damages to be assessed by the jury, on the ground, that a second action could not be brought to recover damages resulting from the same injury. That case was fully considered and is decisive of the one at bar. Upon the authority of that case the plaintiff in this action might have recovered prospective damages in his first action, and should not have been confined to such damages, as had in fact accrued at the time, when the suit was brought. If the plaintiff, by his own declaration, confined himself to such damages as had resulted from the injury within a given time after it happened, it was the pleader’s own fault ; but, as the time is only limited under a vide licit, it may be questionable, whether such would have been its effect. Sergeant Williams, in his note to the case of Hanibleton v. Veere, 2 Saund. 171, lays down the proposition, that in trespass, and in tort, new actions may be brought as often as new injuries and wrongs are repeated, and consequently prospective damages should not be given in a case, in which there is a continuation of the injury. There is no intimation, that every fresh damage gives a new action. Though it should be admitted, that, in an action by the master, the loss of service is the gist of the action, yet it is a non sequitur, that damage alone can give the action. In trover the conversion is the gist of the action ; yet there is no right of action, unless the conversion involves an injury to the plaintiff’s right of property. •

The case of Hambleton v. Veere, 2 Saund. 169, is relied upon to sustain the decision of the county court. We think that case is distinguishable from the one now before us. That was an action for enticing the plaintiff’s servant to depart from his service ; and the plaintiff claimed damages for the loss of service for the whole of the residue of the term of the apprenticeship. The term had not expired, and, upon a motion in arrest, it was held to be error, upon that declaration, to assess damages beyond the time of the exhibition of the bill. It is to be remarked, that it was alleged in the declaration, that the person enticed away had been retained in the service of the plaintiff, as his apprentice, for the term of nine years, and that having served the plaintiff Jive years, he was then enticed away by the defendant, he (the defendant) well knowing the premises ; whereby the plaintiff lost the service of his apprentice for all the residue of the said, term to come. It appears from the declaration, that the injury was not complete when the action was brought. The defendant enticed the servant away, knowing he was the apprentice of the plaintiff for the term of nine years, and consequently every detention of the servant, with such knowledge, was a fresh injury; and when new damage had accrued, a second action might well be sustained, as in the case of a continuation of a nuisance, or offalse imprisonment. The case of Ward v. Rich, 1 Ventr. 103, rests upon the same principle. That was an action for enticing away the plaintiff’s wife and keeping her from the plaintiff, until, as was alleged, a certain day, which was some time after the suit was commenced. After verdict for the plaintiff judgment was arrested, upon the ground, that it must be intended, that the jury gave damages for the entire term specified in the declaration. In this case the subsequent detention of the wife, after action brought, was a new injury. In Brasfield v. Lee, 1 Ld. Raym. 329, the continuation of the false imprisonment, after action brought, was a fresh injury. The overflowing of the plaintiff’s lands is a continuation of the injury, and upon sound principles there may be, in such cases, successive actions.

It was admitted by the counsel, in Hodsoll v. Stallebrasse, 39 E. C. L. 94, that, if the action had been brought by the master for an injury to his person, the court might have given prospective damages, but they urged, that, when the action was case for loss of service, a different rule should obtain. The court,- however, repudiate any distinction in the two cases. It is true, that, in the argument of that case, a case under the name of Malachy v. Soper is referred to by counsel, which would seem to sustain the decision below. That, it was said, was an action for slandering certain mining shares; and the damages were confined by Littledale, J., before whom the cause was tried, to such as had accrued when the action was commenced. It may be said of this case, that it purports to be but an unreported nisi prius case; and it was not permitted, by Littledale himself, to furnish a rule, to govern the case then before the court. The case of Roberts v. Read et al., 16 East 215, which seems to be much relied upon by the plaintiff, has very little analogy to the one now 'before us. The highway act of 13 George III directed, that actions against any persons, for any thing done or acted in pursuance of that act, should be commenced within three calendar months after the act was committed. That case simply decides, that, when the highway surveyors had undermined a wall adjoining the highway, which did not fall until more than three months afterwards, the action was not barred. The falling of the wall, the action being case, was considered the gravamen of the action, — the consequential damage the cause of action.

Though it may be said, that the loss of service is the foundation of this action, yet we think that a second action cannot be sustained by the parent for damages resulting to him from the personal injury to the son, by reason of the fall of the bridge. To maintain a second action for a fresh damage, in a case in which there was no new injury, would be novel in principle, and not warranted by authority. Though it may be impracticable to estimate prospective damages, in a case like the present, with mathematical certainty, yet the difficulty is no greater, than in an action for an assault and battery upon the plaintiff, by means of which he has been disabled from pursuing his business. It has been the usual practice, to give prospective damages against towns, for injuries resulting from insufficiency of highways, in cases which called for them.

The result is, the judgment of the county court is reversed, and the cause must be remanded to the county court for farther trial, unless the plaintiff shall elect to become nonsuit.

During the term the plaintiff became nonsuited.

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Dissenting Opinion

Williams, Ch. J.,

dissenting. In this case I see no good reason for reversing the decision of the county court; nor do I feel the weight of any authority, which requires meto do so palpable an injustice, as to deprive the plaintiff of the amount he has recovered of the defendants in this action. The intestate had a just claim on the defendants, for which he has not, and cannot, under the decision now made, receive any remuneration ; and, in the views which I entertain, however erroneous they may be, he could recover a recompense in no other way.

The minor son of the intestate had his leg broken, through the insufficiency of a bridge, which the defendants were bound to keep in repair ; whereby the intestate not only lost the services of his son, but was put to great expense for his board, nursing, medical attendance, &c. The defendants are made liable for all such damages by statute. The intestate had heretofore, in his lifetime, instituted an action to recover for those damages, which he had sustained, and, at the trial, was limited in his right of recovery to the services lost and expenses incurred to the time of bringing that action, and recovered a sum less than three hundred dollars. As the minor son continued to be lame and in need of medical attendance after the commencement of the first suit, the present action was instituted, and a verdict was found for a farther sum of about one hundred dollars. The first recovery was in evidence and claimed by the defendant to be a bar to this suit; and my brethren consider it a bar. I propose to consider, whether the ruling in the suit first brought was not correct, and the true rule of damages then laid down, and whether the present action should not be sustained for the farther and additional damages.

In this action the damage is the gravamen, or foundation, of the right of recovery. It was said by Lord Holt, in Fitter v. Beal, 1 Ld. Raym. 692, “ In some cases the damage is the foundation of the action, — ras in the action by the master for the battery of the servant, per quod servitium amisit. And in Hall v. Hollander, 4 B. & C. 660, [10 E. C. L. 436,] it was held, that the loss of service was th.e gist of the action. The damage sustained in this and similar cases is a subject, not of conjecture, but capable of estimation with accuracy.

In the first place, it is unquestionable, that in all personal actions, except perhaps the action of account, the plaintiff is entitled to recover damages only for the wrong done before the writ was brought, and shall recover no damages for any done pending the writ. This was ruled in Robert Pitfold’s Case, 10 Co. 113, and has never been controverted since; and so rigidly has this rule been adhered to, that, until the case of Robinson v. Poland, 2 Burr. 1077, interest was not carried down on a contract beyond the commencement of the action, and the court then took time to consider, before they adjudged that interest should be computed to the time of takingthe verdict. When it appeared, after a verdict, that the declaration counted on damages beyond the date of the writ, and that the jury might have found damages as laid in ^redeclaration, judgment was invariably arrested. The cases to this effect are numerous, but only two will be mentioned, as peculiarly adapted to the case under consideration.

In Ward v. Rich, Ventr. 103, [7 Vin. 298, pl. 25,] Ward brought an action de uxore abducta and keeping her from him until such a day, which was some time after the exhibiting the bill. After verdict for the plaintiff judgment was arrested, because the jury may have given damages for the whole time laid in the declaration. In Hambleton v. Veere, 2 Saund. 169, in an action for procuring an apprentice to depart from the service of the plaintiff, and to recover for the loss of his service for the whole of the residue of his apprenticeship, judgment was arrested, because the jury assessed damages according to the declaration ; and the court say expressly, “ he ought to have recovered damages for the loss of service until the exhibiting the bill only, ootid no more.” In Waller v. Ward, 10 Mod. 273, an action was brought by the husband for taking his wife away and ravishing her, per quod consortium &c. for one year ; and after a yerdict, and general damages, inasmuch as the year had not expired at the time of the verdict, and as the jury might have given damages to the time of the verdict, the court would not render judgment for the plaintiff. There are numerous other cases to the same effect.

The conclusion, which I draw from these cases, and which appears to me to be irresistible, is, that in these cases the jury are not to take into consideration prospective damages. For if a judgment is to be arrested, because the jury have, upon evidence before them, assessed actual damages after the commencement of the suit, and to the time of the verdict, how can it be said, or pretended, that they may, by estimation, give damages for all future loss of services, and medicines and medical attendance. As prospective damages cannot in my opinion, be given in such an action as this, the same not being a subject of computation for a time future, and such damages being capable of estimation for a time past, I think the plaintiff was rightly restricted, in the first action, to the damages sustained at the commencement of the suit; — for the same reason that Littledale, J., in the ease of Malachy v. Soper, mentioned by him in Hodsoll v. Stallebrasse, 39 E. C. L. 94, restricted the plaintiff to the damages sustained at the commencement of the action, because the jury could not say prospectively, what damages would arise thereafter.

The court at the last term, not being satisfied on this point, and being sensible, that, if the jury could not take into consideration future damages, either a plaintiff, who might be poorly able to bear the expense of a continued and protracted sickness of his son, or servant, would have to wait, until the sickness terminated by death, or in a complete recovery, before he could resort to the tribunals of justice to compel the defendant to pay his damages, or else, that an action might be sustained for damages from time to time, as special damages accrued, directed the cause to be continued, and were then disposed to sustain the action, if prospective damages could not have been recovered in the first action. I have already observed, that I think they could not have been so recovered and should be recovered in this action.

On a farther examination of the subject, I have come to the conclusion, that this action may be maintained, and that the recovery in the first action is no bar in any case, and that it was so considered in England, until the case of Hodsoll v. Stallebrasse, 9 C. & P. 63, [38 E. C. L. 35,] and 11 Ad. & El. 301, [39 E. C. L. 94,] which I shall have occasion to examine. Mr. Hammond, in his treatise on the law of Nisi Prius, when speaking of actions where special damages have arisen from the tortious act of another, says, “ It would seem, that, if the plaintiff, after recovering damages for such injurious consequences, as have already resulted, sustains a farther detriment, he may demand a compensation for this, provided it could not be foreseen at the time the jury pronounced their verdict in the first action.” Ham. N. P. 40. He lays down the same proposition in his edition of Comyn. 1 Com. 236. This rule seems to be founded in reason, and to commend itself to the good sense of every one, and is undoubtedly a sound legal rule. An adherance to it will reconcile all the cases on this subject, even the one lately decided of Hodsoll v. Siallebrasse, before mentioned, and will, in my opinion, entitle the plaintiff to retain this verdict. The jury, on the first trial, could not foresee the length of time the son would remain an invalid, incapable of performing any services for the father, what amount of care and attendance would be required, how much would have to be expended for medicines, medical attendance, &c., and no one could enlighten them on this subject, no one could give any well founded opinion on the subject; they could only hazard a guess. If, upon evidence of what was past between the time of rendering the verdict and the commencement of the action, and which could be made certain, the jury had assessed damages to the time of the verdict, we have already seen that judgment must have been arrested.

It is said, however, that this action is novel, and that in some actions the jury have to take into consideration probable consequences, — as in assault and battery, slander, &c. In an action for assault and battery the recovery is had for the assault, and the consequences, which may flow from it, become a proper subject of inquiry only to ascertain the aggravated nature of the assault. Thus in Fitter v. Beale, 1 Ld. Raym. 692, 12 Mod. 542, the court refused to sustain a second action for the injurious consequences of a wound on the head of the plaintiff by the exfoliation of his scull, when the jury had, at the first trial, given insufficient damages, as the plaintiff and defendant both appeared to be drunk. The court remark, that, if the plaintiff’s surgeon had been called at the first trial and given his opinion as to the result, the jury would have taken it into consideration ; and this expression necessarily implies, that the surgeon would have given such an opinion. Lord Holt remarks, that in that case the battery was the injury and the gist of the action, and the consequences but an aggravation of the injury; but that in other cases, “ as when a master brings an action for beating his servant, damage is the ground of the action,” — recognizing the very distinction, which I have endeavored to establish. In slander the injury is the speaking the words; of course one recovery is all that can be had ; and after a verdict for the plaintiff, establishing the falsity of the slander, no farther damages are to be expected. In seduction the loss of service is only necessary to enable the father to maintain the action, but is scarcely an ingredient in estimating the amount of damages; of course one recovery includes the whole injury sustained by the plaintiff.

In this action, for loss of service, I understand the remarks of Lord Holt, before referred to, clearly to intimate, that a second suit may be brought; and he distinguishes it from the case then before him, where the recovery had been had for assault and battery. I understand, also, the remarks of the learned commentator in Saunder’s reports, in Hambleton v. Veere, before mentioned, clearly to intimate, that a second action may be maintained in such a case. In discussing the question, when a new action may be brought for any duty, or demand, which has arisen since the commencement of the action, and which for that reason shall not be included in the first judgment, he mentions trespasses and torts, when new injuries and wrongs are repeated. If we are to understand him only as saying, that for a new trespass, or tort, a new action may be maintained, it is laying down a self evident proposition, which he would hardly have been at the pains to do; but if we consider his remarks as applicable to the principal case, where but one act had been committed, and was neither repeated nor continued by the defendant, his remarks are intelligible, that the damages could not be recovered, in that action, subsequent to the commencement of the action, because, if new damage, or injury, should accrue, a new action might be brought. There are other cases, where a new action is permitted. A recovery in trespass is no bar to an action of detinue, unless damages were given for the' property. A recovery in trespass for taking sheep, where damages were given only for the taking, is no bar to an action of trover for the value. These principles were established in Lacon v. Barnard, Cro. Car. 35, Putt v. Rawstern, 3 Mod. 1, and in the case of Gates v. Goreham, 5 Vt. 317, and Stewart v. Martin, 16 Vt. 397.

Much reliance has been placed on the case of Hodsoll v. Stallebrasse, 39 E. C. L. 94, before mentioned, and it is urged with great vehemence, that no person ever thought that prospective damages could not be given, or that a second action might be brought, until the counsel for the defendant urged it in that case. It may be necessary to make some examination of the case; and to my mind it appears, that, until that action, it never was doubted, that, in an action like the present, damages could not be recovered for any thing after the commencement of the suit, and that a new action might be brought for damages, if any accrued which the jury could not foresee. The case itself is only an authority for the same position, before mentioned, laid down by Mr. Hammond, that, when the injury is permanent, and is specially stated in the declaration, and can he estimated by the jury, a recovery may be had for the whole extent of the injury, though it may embrace a future period, but does not establish the position, that, when the injury is not permanent, and the consequences cannot be foreseen, such damages may be awarded. Nor does it decide, that, if the damages were not specially assigned, a recovery could be had therefor in the first action, or that a second action would not lie for such subsequent damages.

It is to be observed, that the pleader thought it necessary, in that case, to assign the damages specially, as from a permanent injury, that the apprentice was enfeebled, and hurt, and would never again be capable of working at his trade, and that he was obliged to support him during the remainder of his apprenticeship. This shows, that the pleader thought it not a matter of course for the jury to look into future consequences, unless particularly assigned. Lord Denman thought, that, under that declaration, the plaintiff might recover for the damages he sustained by reason of the permanent injury. The jury assessed the damages as for a permanent injury ; but the case was reserved.

Mr. Erie, who appeared for the defendant in that case, was one of the ablest of the members of the bar, and distinguished for his coolness, his legal research and great ability and intimate acquaintance with the common law. It was said of him, that “ nothing disconcerts him; an interruption from the bench, or the opposite counsel, never takes him by surprise;” and he is particularly happy in confining the attention of the bench to the proper topics. He has lately been promoted to the bench. The opinion of such a man is of some weight, though given as counsel, when we reflect, that eminent counsel there contend for principles, and not for victory, and never lead a man through a hazardous lawsuit, when it is merely for experiment. When the cause came before the King’s Bench, he maintained and insisted, that the ground of the plaintiff’s complaint was the resulting damages, and that he could only bring his action from time to time, when special damages accrued ; and he pressed Littledalb, J., with the decision which he had then recently made in Malachy v. Soper; — and in my view Littledale did not very clearly point out the distinction. The court sustained the verdict, on the ground that the injury was permanent, and the jury had the means of estimating the prospective damages, which they had not in Malachy v. Soper. Any other dicta, which may have fallen from the judges, is of no more weight, as authority, than the opinion of Mr. Erie. It is to be observed, that none of them say, that, if the injury had not been permanent, so that the damages could be ascertained in that suit, another action could not be brought, or that, if they had not been specially alleged in the declaration, they could have been recovered in that suit. Nor is it decided, that, when prospective damages are not assessed in the first action, a subsequent action cannot be maintained.

The inference which I draw from-this case is, that, when the damages can be alleged and computed in one action, a recovery may be had therefor; but when they are uncertain, depending on future contingencies, and cannot be thus computed, they cannot be recovered in an action, except to the time of its commencement, but may be the subject of a farther action, when they do accrue ; and the inquiry put by Bayley, J., in Roberts v. Read, 16 East 217, is not very easily answered, — “ How was the damage to be estimated, before it actually happened ? ”

I am aware it has been urged, that, if this verdict is sustained, actions may be multiplied ; and in Hodsoll v. Stallebrasse the counsel for the plaintiff thought it was a mercy to the defendant, that all the damages should be recovered in one action. To this argument ab inconvenienti it may be answered, that the defendants, by performing their duty in the first place by making a sufficient bridge, or, after the injury, by paying the intestate for the services of his son and the expenses of his medicines and nurses and physicians, or by tendering to him from time to time a sum for those services, w'ould not be subject to those inconveniences. The permitting a jury to wander into uncertainties as to future contingencies, might not be a mercy, either to the "plaintiff, or defendant, but rather a grievous judgment.

I am not aware, that the practice in this State has been such, as to warrant a recovery in'similar actions for future damages and losses of service ; nor do I think any such practice justifiable on any principle of law. The plaintiff, in my opinion, is entitled to retain his judgment, rendered by the county court, and it should be affirmed.