Brennan v. Berlin Iron Bridge Co., 71 Conn. 479

71 Conn. 479 | Conn. | 1899

Hall, J.

The plaintiff, in 1895, commenced an action against the defendant to recover damages for a personal injury sustained November 20th, 1894, by the falling of a large timber which the defendant was using in the construction of a trestle for the Naugatuck Malleable Iron Company, by which, company the plaintiff was employed. The pleadings in that action terminated in a demurrer to the complaint, which was sustained by the court, and, no amendment having been made, final judgment was rendered in May, 1896, in favor of the defendant.

In September, 1897, the present action was commenced to recover damages for the same injury. The defendant suffered a default, and, in accordance with the provisions of the Act of 1897 concerning hearings in damages after a default or demurrer overruled (Public Acts of 1897, Chap. 220, p. 924), and with the rules of practice adopted under said Act, filed a written notice that it would prove said former judgment as a defense to the recovery of substantial damages. The trial court held that the defense of res ad judicata was available upon a hearing in damages, but that the former judgment was not a bar or an estoppel to the maintenance of the present action.

A former judgment showing that the plaintiff had no right of action is, under our practice, after due notice, admissible in evidence upon a hearing in damages after a default; and proof of such a judgment, since it shows that the plaintiff is in law entitled to recover no damages, is proof that he can recover no more than nominal damages. The right to prove such a special defense upon a hearing in damages, is clearly implied both in the language of the Act of 1897 and of the rules as to the form of notices under that Act. By the former, the defendant is not permitted upon such hearing to offer evidence to contradict any allegation of the complaint not relating to the amount of damages, nor to deny the right of the plaintiff to maintain the action, nor to prove any matter of defense without having first given the required notice. By the rules, any hew matter by way of confession and avoidance must be specified in the notice.

Prior to the Act of 1897 the defendant, upon such a hearing in damages, “ might show that the plaintiff was entitled to nominal damages only, because in reality and but for the default or demurrer he was entitled to none.” He might “offer evidence of any fact tending to prove such non-liability as if no demurrer had been interposed or default had been suffered.” Gardner v. New London, 68 Conn. 267, 274. Many of the objections to allowing proof of a special defense, upon such a hearing, have been removed by the Act and rules referred to, which require written notice to be given to the plaintiff specifying the new matter which the defendant intends to prove.

Judge Swiet says (1 Swift’s Dig. s. p. 639): “In the case of demurrers, judgment is rendered in chief, and will be a bar to another action brought for the same matter, cause, and thing, except where the first action failed, for some defect in form, or for want of some essential allegation, which can be supplied in a new action.” The principle is too well established to admit of discussion, that a judgment upon a demurrer to a complaint, deciding not that some formal defect exists in the pleading which can be cured by amendment, or that some material allegation has been omitted which can be supplied in another action, but that upon the facts no right of action exists against the defendant, is final upon thé question of the defendant’s liability upon the facts alleged, and is as complete a bar to another action upon such facts as if the judgment had been rendered upon proof of the truth of the averments of the complaint. Gould, Pl. (2d ed.) 447, Chap. IX, Part 1, §§43, 44; Big. on Estop. (4th ed.) pp. 53, 54; Van Fleet’s Former Adjudication, § 306 ; Bissel v. Spring Valley Township, 124 U. S. 225; Alley v. Nott, 111 id. 472, 475; Gould v. Evansville, etc., R. Co., 91 U. S. 534; Bouchaud v. Dias, 3 Denio, 238; Straw v. Illinois Cent. R. Co., 73 Miss. 446.

The demurrer in the first action commenced by this plaintiff, was based upon six grounds, among winch were these: “ Because no acts constituting carelessness and negligence on the part of the defendant are set out in the complaint; because it appears that the injuries were received through the negligence of those who stood in the relation of fellow-servant to the plaintiff.” The record shows that the court sustained this demurrer upon “every ground therein alleged.” In rendering final judgment the court, therefore, necessarily decided that the facts alleged in the complaint showed that the plaintiff sustained his injury from the negligent act of a fellow-servant, and showed no other act of negligence on the part of the defendant. The demurrer went to the substance of the complaint, and the judgment rendered was a determination of the case upon its merits, and not merely upon some formal defect. Black on Judg. § 694; Alley v. Nott, supra. If, then, the same acts of negligence of the defendant are described in both the former and the present complaint, or if, though the first complaint describe acts of negligence not contained in this complaint, it yet alleges the acts of negligence set forth in the present action, the judgment in the first suit is a bar to the maintenance of the second action, because in either case the court in the first suit has adjudicated between the same parties and upon the same acts the legal question of the defendant’s liability sought to be raised by the second action.

The plaintiff does not seem to question these propositions. His position is that the two complaints describe different causes of action, or that the defendant’s act of negligence as alleged in the second complaint is another and different act from any described in the first action. The complaint in the first action, and especially the fifth paragraph, he says, alleged that while the plaintiff was assisting in removing a timber, a servant of the defendant and a fellow-servant of the plaintiff carelessly pushed or threw down another timber against the plaintiff and injured him, and that in the second action it is alleged as a cause of plaintiff’s injury that the timbers were negligently piled and left unsecured by the defendant.

Assuming for the purposes of the argument that the conclusive force of the first judgment would be affected by such claimed difference in the statement of the cause of action in the two cases, we think a careful reading of the two complaints will show that no such difference exists. It is alleged in paragraph five of the first complaint, that while the plaintiff was standing near the pile of timbers in the exercise of due care, “ in consequence of the negligence of the defendant aforesaid, one of said pieces in said pile of timbers, weighing about fifteen hundred pounds, fell down .... upon and against the plaintiff’s right leg and foot.” A similar allegation, omitting the words “in consequence of the negligence of the defendant aforesaid,” is found in paragraph 15 of the present action, and in both complaints the cause of the falling of the timber is clearly stated to have been the negligent and insecure piling of them by the defendant’s servants before the plaintiff went to assist the defendant’s workmen; and both complaints allege that the timbers thus insecurely piled were negligently suffered to remain without warning or protection. These averments of negligence are found in paragraphs 4 and 5 of the first complaint, and in paragraphs 6, 7 and 8 of the present action. It is true that there is added in paragraph 5 of the first complaint, “ and by the carelessness and negligence of the defendant by its servants as aforesaid (the timber) was thrown down upon and against the plaintiff’s right leg,” etc.; but we do not think this was intended as an averment that the timber in question was thrown upon the plaintiff by reason of the careless manner in which the defendant’s servants handled the timber which they were moving. The facts alleged do not show such carelessness. Evidently the alleged mistake was in handling any of these sticks of timber while so insecurely and negligently piled, and while persons were where they were liable to be injured by their falling. We think that the allegation that the timber was thrown down upon the plaintiff “ by the carelessness and negligence of the defendant by its servants as aforesaid,” refers to the negligent acts of the defendant’s servants before described in paragraphs 4 and 5 of the complaint, namely, the negligent manner in which the timber was piled and suffered to remain insecure and without protection or warning. These are the same acts of negligence described in the complaint in the action before us, though perhaps in slightly different language.

The cause of action which is described in the second complaint is also described in the first. Indeed, we regard the proximate cause of the plaintiff’s injury, as stated in both complaints, to be the negligence of the defendant in failing to have the timbers in question properly and securely piled. The trial court upon the hearing in this case has found that to have been the cause of the fall of the timbers. That fact, as well as all other substantial facte of the finding before us, might have been proved under the averments of the first complaint, had there been in that case a hearing similar to that had in the present case. Upon this appeal we cannot, of course, review the decision of the Superior Court upon the former case. But we think it manifest that the decisions in the two cases are conflicting, and that upon substantially the same facte the Superior Court held in one case, as a matter of law, that the defendant was not guilty of negligence and that the injury was the result of the negligence of the plaintiff’s fellow-servant, and in the other, as a matter of law, that the defendant was negligent and that the injury was not caused by the negligence of the plaintiff’s fellow-servant. No appeal having been taken from the first judgment, the parties, who were the same in both cases, were concluded by it, and it was error to hold that that judgment was not a bar to the maintenance of this action. As the determination of this question is decisive of the case, it is unnecessary to consider the remaining reasons of appeal.

There is error, the judgment is set aside and the case remanded to the Superior Court for the assessment of nominal damages.

In this opinion the other judges concurred.