19 Conn. 122 | Conn. | 1848
This case involves a principle of pleading or practice, of some practical importance ; and it is this only, which makes it worthy of our attention.
1. The plea in abatement was of no avail. As to the first count in the declaration, it was found by the justice to be untrue ; and to the second, it had no application.
2. The only question which we deem important in the case, is, whether in this declaration there is a misjoinder of counts ? The first count is in trespass, for an injury to the property, and the second in case, for a consequential injury to the person, of the plaintiff. By the common law, these counts cannot be joined. But by our statute of 1836, it is provided, “ that one or more counts in trespass on the case “ foundep in tort, may be joined with one or more counts in “ trespass, in the same declaration, when all of such counts “are for the same cause of action.”
There is no averment that these counts are for the same cause of action; nor can the court, from the nature of the facts alleged, nor the form of allegation, presume them to be so, in this case. So far from this, we see them to be for causes of action essentially different; and to have averred them to be for the same cause, would have constituted a re-pugnancy.
The act complained of, to be sure, is the same, as described in both counts ; but it resulted in very different consequences, constituting, in their nature, very dissimilar causes of action : an injury to the property, as its direct result, and an injury to the health of the plaintiff, as its indirect and more remote
And it makes no difference, in this respect, that by a proper form of averment, the plaintiff might have recovered, under the first count, for the injury described in the second. The causes of action still are distinct and different. And it is not uncommon, in actions of trespass vi et armis, that by way of aggravation, the plaintiff recovers damages for that, which alone considered, would furnish a good cause of action in case: as in trespass quare clausum fregit, the plaintiff may recover for the seduction of his wife or daughter; or as in the case of Barnum v. Vandusen, 16 Conn. R. 200. for the damage sustained by the communication of a deadly and contagious disorder to his sheep. But in all such cases, to justify a recovery in aggravation, the facts and circumstances must be averred, as a ground of recovery, specially and with reasonable particularity. 1 Chitt. Pl. 386. 1 Saund. 346. Treat v. Barber, 7 Conn. R. 275. Barnum v. Vandusen, 16 Conn. R. 200. Bracegirdle v. Oxford, 2 Mau. Greenl. Ev. § 273.
In the present case, no allusion is made, in the firkf. count to any matter of aggravation; but the plaintiff reljfljJpWa o recovery for the injury to his person, upon the additional special facts alleged in the second count, as for ground of complaint.
There is, therefore, in our opinion, a misjoinder of counts in this declaration, and not authorized by our statute, and of which the defendant may avail himself, by writ of error.
There is nothing erroneous in the judgment of the superior court.
In this opinion the other Judges concurred.
Judgment affirmed.