Lamphear v. Buckingham

33 Conn. 237

• Court: Supreme Court of Connecticut
• Decided: February 15, 1866
• Status: Published

Opinion

Butler, J.

The only question reserved for our advice by the superior court on this record is, “ whether under the statute on which this action is brought the court has power to find and assess the damages in the case at a less sum than one thousand dollars.” As the statute is express both as to the minimum and maximum of damages, it would seem too clear for argument that, u under the statute,” to use the language of the court, the minimum sum fixed by it at least must be recovered.

But the counsel for the defendants, in an ingenious and elaborate argument, seek to avoid a recovery for more than nominal damages, on the ground that the case can and should be taken from the operation of the statute and treated as an action at common law. The points which they make are presented with great apparent confidence, and we will consider them fully in the order in which they are presented.

1. Eirst then, the defendants claim that the declaration does not disclose a cause of action under the statute, and does contain one at common law. They say that an action does not lie under the statute against the trustees.

The original eighth section of the act of 1853 authorized the action against the railroad company only. But we are of opinion that the act of 1858, which authorized and regulated the surrender of the road and franchise to trustees for the benefit of creditors, subjected the property in the hands of such trustees to liability, and them to a suit under this statute. The language of the 513th section (Revision of 1866, page 196,) read in view of the object and purpose of the law, is broad enough to justify that construction. Moreover we think the defendants mistake in assuming the statute to be a penal one. It does not provide a penalty for the breach of a positive law or for a public wrong. It recognizes the fact that it is or may be a serious injury to the family and heirs of a person to have him or her removed by sudden and premature death, and the peculiar damage of such removal from a negligent management of railroads, and provides for compensation to the family or heirs in case of such death, and lacks some of the essential characteristics of a penal statute. The General Assembly intended by the act either to regulate and limit the right of action then existing in favor of the administrator or to provide a new and substitute one. And whether one or the other is a question of some nicety, which it is of no importance to discuss or decide. The plaintiff has wisely adapted his declaration to either view of the question, and in either event the statute is remedial. The statute of New York in relation to the same subject matter, which is substantially similar in character, and clearly new and independent, has been holden by their courts remedial and not penal. Beach v. Bay State Co., 10 Abbott’s Pr. R., 71; S. C., 30 Barbour, 433, and cases cited.

2. The defendants further claim that the declaration is defective as a declaration on the statute because it does not contain an averment that there is a widow or heirs at law. To tins the plaintiff replies that the existence of heirs will be presumed and the allegation is unnecessary. It is certainly possible that a person may die without heirs at law, and the statutes of this state have always-contained a provision in such an event for the escheating of the estate. But instances where estate has escheated for the want of heirs have been very rare. Perhaps in view of the very great improbability that a person can be without heirs at law it would be safe and just in a civil case to presume their existence. But we are not called upon to decide that question. The objection goes to the capacity of the plaintiff to sue. If that capacity does not sufficiently appear on the face of the declaration, it is a defect reached by the demurrer. If the objection was taken in the court below it was necessarily overruled; if not taken it was waived. If overruled, the defendants by neglecting to file a motion in arrest, and going to trial on a hearing in damages, waived it. And it does not appear that the demurrer was heard or overruled proforma, and for aught that appears on the record the defendants waived a hearing on the demurrer, and all objections to the judgment, if any, and consented that the demurrer should be overruled for the purpose of a hearing in damages, and the practice in these cases justifies us in assuming that such was the case. The declaration is also amendable, and the court have found the fact that there are heirs, for aught that appears without objection, and they ask our advice whether a less sum than $1,000 can be given “ under the statute ” upon the facts found.

Under these circumstances the objection, if it be one, can not avail the defendants on the question reserved. And for these reasons we are of opinion that this action can not be viewed by us, in advising the superior court in respect to the amount of damages which should be assessed, as an action at common law to which the statute does not apply, and in' which nominal damages can be given.

3. The defendants insist, in the third place, that if the demurrer admits a statutory cause of action it admits no specific facts as facts, and therefore admits no statutory negligence, and no right except the mere right to recover nominal damages. This involves an inquiry into the nature and effect of a demurrer. There has been much discussion respecting them in this court and elsewhere during the last few years, and still they do not seem to be clearly understood. The defendants certainly, have misapprehended them. The misapprehension has probably arisen from the inaccuracy of the usual expression, “ a demurrer admits,” &c. Strictly speaking a demurrer does not admit anything, and in order to express more clearly, and so that they can not be misunderstood, the viéws held by this court, it seems necessary to recur to first principles.

Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism, of which the major premise is the' proposition of law involved, and the minor premise the proposition of fact, and the judgment the conclusion. Blackstone states it thus: (Com. Vol. 3, page 396:) “ The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination or sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus: — against him who hath rode over my corn I may recover damages by law; but A. hath rode over my corn ; therefore I shall recover damages against A.” Usually the major premise is not set out in the declaration, but the proposition claimed is implied from or involved in the facts stated. The plaintiff in an action of tort, for instance, summons the defendant to answer, for that at a certain time and place he committed in a certain manner a certain wrong, to the plaintiff’s damage, Ac., and by so doing impliedly claims that the law is so that he is entitled on those facts to recover. To this syllogism the defendant must answer according to the rules of law. If he expressly admits on the record the law and the fact, both-premises, he consents to the conclusion, the judgment, or as it is technically expressed, “ confesses judgment.” If he declines or omits to appear pursuant to the summons, or appearing declines or omits to answer when called upon to do so, he impliedly admits both propositions or premises to be true by his default, and judgment follows technically as a judgment by default, pursuant to a necessary rule of law stated broadly by Mr. Taylor(Ev. 669,)thus: — “Whenever a material averment well pleaded is passed over by the adverse party without denial, whether it be by pleading in confession and avoidance, or by traversing some other matter, or by demurring in law, or by suffering judgment to go by default, it is thereby, for the purpose of pleading if not for trial before the jury, conclusively admitted. So the defendant may traverse or expressly deny the facts or the minor premise, and will be held on the same principle to' have admitted the major,^ and, if the minor is found true, judgment — the conclusion— is awarded on the verdict. And so he may deny the major premise, the proposition of law involved, by a demurrer, and failing thereby to denyand passing over the facts,if well pleaded and sufficient to constitute a premise, he defaults as to them,, and thereby and by the same rule is holden to have admitted them ; and if the issue in law is found true, final judgment passes for the plaintiff. The facts if well pleaded and sufficient are admitted, not because the demurrer admits them expressly or by force of any office it performs, but because the defendant has not denied and lias defaulted them. A defendant therefore who demurs to a declaration admits, not by his demurrer but by his omission to deny them, all the material well pleaded facts alleged in it; and when his demurrer is overruled the case is in the same condition precisely that it would have been if he had suffered a default and not demurred. All the difference between the two is, that in one case he denied the major premise of law and it has been found true, and, the minor having been admitted by a failure to deny, both are to be holden true ; in the other he denied neither, and therefore both are to be holden true.

The condition of a case before the court after demurrer overruled and after default being precisely the same, and the effect of demurring or defaulting being precisely the same in admitting the facts, the question as to both is answered by what the law is as to either. What then is the effect of a default ? What facts does it admit ? It has been said by some writers and judges that it admits the cause of action, and by others that it admits a cause of action merely. Mr. Eoscoe in his wort on evidence states the proposition broadly thus — “ Suffering a judgment by default is an admission on the record of the cause of action.” The true rule is that it admits the cause of action as alleged, in full, or to some extent, according to the nature of the action. As it admits all the material facts well pleaded, if a distinct, definite, entire cause of action is set forth, which entitles the plaintiff to a sum certain without further inquiry, it admits the cause of action in full as alleged. If by the rules of law further inquiry is to be had to ascertain the amount due, or the extent of the wrong done, and of the damage to be recovered, then it admits the cause of action, but not to the extent alleged, and subject to such inquiry. Thus, if it be debt on bond for a sum certain the whole is admitted, and no further inquiry is had, and so if assumpsit on a note or bill, and there are no indorsements entered on it, and the defendant does not move for an inquiry, the cause of action and the amount claimed are admitted. The note must be produced but need not bo proved. Greene v. Hearne, 3 T. R., 301; Roscoe Ev., 10 ed., 71. But in actions of tort for unliquidated damages a different rule is necessarily applied. In such actions the plaintiff does not declare for a specific thing but has an unlimited license in declaring, and may allege as much of wrong and injury, and demand as much damage as he will, and recover by proving any amount however small if sufficient to sustain an action. A defendant therefore in an action of tort is not holden to have admitted by his default the extent of the injury. It is assumed that, as the plaintiff may allege more than is true, he probably has done so, and the' defendant by his default is considered as admitting the wrong to some extent, leaving that extent to be inquired into to enable the court to fix the damages, because such an inquiry is always and necessarily had in such cases. But he admits the wrong, and consequent right of the plaintiff to recover to some extent. By our practice this inquiry is not by writ of inquiry, or by reference, but made by the court on a hearing in damages. On that hearing, it results from the very nature of the inquiry, that any evidence tending to belittle or mitigate the injury complained of and admitted, and any evidence tending to aggravate it, is admissible. If in proving the extent to which he was in fault, the defendant prove that he was not in fault at all, and that the injury occurred through the fault of the plaintiff, the plaintiff can not complain. The evidence does' not deprive him of his right to judgment; it merely shows that, as he is not in fact entitled to any damages, he can only have such as the law gives him by reason of the admissions on the record. In the light of these elementary principles we may see how far the various dicta cited in the argument are true. One of them is that “ a demurrer admits no facts as facts.” That, as applicable to chancery practice, is true, for in chancery, when a demurrer is overruled, the respondent can answer over and show the averments to be untrue; but it is not true at law. It admits, or rather the party, by demurring only, admits, all or so much of the facts as facts as may be necessary to sustain a judgment. Again, it is said “ a demurrer admits nothing as a rule of evidence.” If any thing more was intended by the author of that expression than that it does not admit facts alleged in the declaration, so that they could be used as evidence on the inquest, reference or hearing in damages, it is an unintelligible and unfortunate expression. Of course on the inquest or hearing, where the object is to ascertain the extent to which the facts alleged are true, it would be absurd to Offer the facts alleged in evidence, as fully admitted by the pleadings to be true, to prove themselves true. Such an inquiry would be senseless and unnecessary. Again, it is said that a demurrer admits the facts alleged for the sole purpose of testing their legal sufficiency. This too is an attempt to use at law a rule in chancery. In chancery practice as we have said, the facts are not admitted by being passed over, but are supposed to be true, for the purpose of testing their legal sufficiency at law. They are, each and all that are material, admitted to be true to some extent, as the basis of a final judgment. And so of the claim that “ a demurrer admits a mere right to recover nominal damages It admits no right. It admits, or the party by demurring admits, the facts as true to some extent. The law bases the right and the judgment on the facts as admitted.

Applying these principles to this case, we are satisfied the plaintiff is entitled to recover the sum of one thousand dollars. The defendant by his demurrer and his omission to deny the facts, admitted the cause of action and every material element of it, and negligence was one of them. If the damages had been fixed by the statute at a single sum of $1,000 or $5,000, no hearing in damages would have been necessary or proper. No evidence which the defendant could properly offer, and no fact which the court could properly find, would affect the right of the plaintiff to recover that sum. And this is true whether the statute be regarded as giving a new right of action, or regulating the amount of damages and their disposition in an old one. The statute gives the court a discretion as to the amount of the damage above the sum of $1,000 and up to $5,000, and to that extent the court could properly inquire and were bound to inquire. It is of no importance that the court have found there was nq negligence in fact. The existence of sufficient negligence to give a right of recovery on the statute, if it gives a new action, was a material fact, a material element of the cause of action, and was conclusively admitted. And so of every other material element of a cause of action under’the statute which was alleged, for all the allegations necessary to bring the plaintiff’s case within the statute and give him the right of action provided by the statute, were material, and were of course admitted by the omission to traverse them.

We advise judgment for the sum of §1,000.

In this opinion the other judges concurred.