Delgado v. Trujillo

24 P.R. 456

Opinion

Mr. Justice Wolf

delivered the opinion of the court.

This appeal involves the sufficiency of a complaint of three counts. The second and third counts repeated the statement of facts of the first count and merely- alleged additional resultant damages. The first count alleged a total destruction of complainant’s house by the violent acts of the defendants and $125 damages were claimed in the said count. A demurrer was filed to the whole complaint, which the court sustained, and judgment was subsequently rendered for the defendants.

As a consequence of the destruction of the house of the ■complainants, they alleged in their second count that they were without shelter or means of obtaining the same and that some of them -fell ill, and they claim $5,000. "We think in this case that instead of demurring the better practice would have been to move to strike out the second count as it merely restated the facts of the first count. The complainants, however, elected to make the damages the principal story of their second count, and as these damages were too remote and their real damages could have been recovered under their first count, we think that a general demurrer may be made to cover the unsoundness of the averment of damages.

The third count related solely to punitive damages. We see nothing in the manner of the destruction of the house that would subject the defendants to punitive damages, and that count must also be held to be bad under the general ■demurrer as the damages were too remote.

With the second and third counts declared bad, the court had no jurisdiction to hear a claim for $125 and properly sustained the demurrer to the first count on the ground of the lack of such jurisdiction.

As the complainants elected to stand on the result of the ■demurrer, as they were all improperly joined in a suit for tort, the election to stand on the demurrer should be considered permanent and the complainants given no further leave to amend.

The judgment must be

Affirmed.

Chief Justice Hernández and Justices del Toro, Aldrey and Hutchison concurred.