Brown v. Town of Southbury
| Decision Date | 16 December 1885 |
| Court | Connecticut Supreme Court |
| Parties | BROWN v. Town of SOUTHBURY. |
Action against a town for injuries to plaintiffs' carriage and horse, caused by allowing a dangerous hole or sluice to exist in a public highway. The opinion states the facts.
Doolittle & Bennett, for plaintiff.
The statutory notice is a condition precedent to the plaintiff's right to maintain his action. Inquiry as to its sufficiency is proper where the right to maintain the action is questioned. Here no such question arose, since the defendants by demurring admitted the plaintiff's standing in court. Crane v. Eastern Transp. Line, 48 Conn. 361. The plaintiff's right to maintain his action being admitted, there remains nothing for the plaintiff to prove except the extent of the wrong done to him by the defendants. Evidenee is admissible on the part of the defendants to belittle the plaintiff's injury, and to prove the injury was not occasioned by the fault of the defendants; the burden of proof being upon him. Daniels v. Saybrook, 34 Conn. 377; Lamphear v. Buckingham, 33 Conn. 250; Crane v. Eastern Transp. Line, 48 Conn. 361. While it has been decided that the defendants cannot be deprived of the privilege of introducing evidence in reduction of damages simply because that evidence shows the plaintiff has no cause of action, yet the evidence thus introduced must be such as to throw light upon the extent of the injury done by the defendants. Evidence as to the sufficiency of the notice is not such. It does not belittle the injury. It does not tend to show that the injury was not occasioned by the fault of the defendants. It is notice of an injury which of necessity has happened when the notice is given; and giving it is but a step in a proceeding to fix the liability for such injury upon the town. Evidence in regard to it by either party would be immaterial and irrelevant. The court decided correctly that it was not necessary, upon the hearing in damages, for the plaintiff to prove that he had given the written notice required by the statute, to enable him to recover substantial damages.
The notice given was sufficient, (a) In determining its sufficiency in regard to place it must be considered in connection with the circumstances. The notice shows that the horse fell through a defective sluice situated between two points, upon the highway. The facts show one, and only one, defective sluice within those points, and the defect in it, a hole so apparent that the attention of a person who had received the notice must have been called to it at once. The notice was given within four days of the accident. Tuttle v. Winchester, 50 Conn. 4"97. The following cases are exactly in point: McCabe v. Cambridge, 134 Mass. 484; Lowe v. Clinton, 133 Mass. 526; Ranney v. Sheffield, 49 Vt. 191. (b) The notice sufficiently specified the nature of the injury. Blackington v. Rockland, 66 Me. 332; Bradbury v. Benton, 69 Me. 194; Pratt v. Sherburne, 53 Vt. 370; Weeks v. Lyndon, 54 Vt. 647; Tuttle v. Winchester, 50 Conn. 497.
The court ruled correctly that the plaintiff could recover damages in this action for the loss of the use of the horse. The action is brought to recover just damages for injury to the particular species of property of which the statute speaks. What shall be the measure of these damages? Certainly in this state the same rule applies as in actions for negligence at common law. Beecher v. Derby Bridge Co., 24 Conn. 491; Seger v. Barkhamsted, 22 Conn. 290. Direct consequences must necessarily be considered. There has never been doubt that, with proper allegations in the complaint, special damages for loss of earnings may be recovered in an action on this statute. Taylor v. Monroe, 43 Conn. 36; Tomlinson v. Derby, Id. 562. Even such remote consequential damages as the expenses of the suit may be recovered in certain cases. Beecher v. Derby Bridge Co., 24 Conn. 491; Wilson v. Granby, 47 Conn. 74. The loss of the use is always considered at common law. Gillette v. Western R. Corp., 8 Allen, 560. The exact question here made has been decided in Massachusetts and Vermont on actions brought under the statutes of those states. Johnson v. Holyoke, 105 Mass. 80; Wheeler v. Townshend, 42 Vt. 15.
Interest was properly allowed as part of the whole sum awarded the plaintiff. After the damages were sustained there was a time during which the defendants delayed satisfaction for them. The date when they ought to have paid, and did not, is found to be December 1, 1883. The plaintiff must be allowed interest during the delay, for in no other way can he receive complete indemnity. Mailler v. Express Lilne, 61 N. Y. 312; Whitehall Transp. Co. v. New Jersey S. B. Co., 51 N. Y. 369; Duryee v. Mayor, 96 N. Y. 477, 499; Lindsey v. Danville, 46 Vt. 144.
A. N. Wheeler, for defendant.
This action is brought upon the statutes of this state relating to high, ways, to recover damages for injuries to the horse, carriage, and harness of the plaintiff, alleged to have been received upon a defective highway that the defendant was bound to maintain. The case was heard in damages, after demurrer overruled, and judgment rendered for the plaintiff to recover $171.59, as detailed in the Record, (page 5,) and the defendant appeals to this court.
The court erred in rendering judgment for more than nominal damages, as the notice given to the defendant (Record, p. 6) does not meet the statutory requirement in that it does not sufficiently specify the nature of the injury, and the place of its occurrence. The plaintiff claimed, and the court ruled, that this objection, if valid, could not be interposed upon a hearing in damages after demurrer overruled. This claim is based upon the assumption that the giving of the notice required by statute is a part of the cause of action, and that by demurring to the complaint and omitting to deny the allegation that such notice was given, the defendant thereby admits that the notice given was sufficient. In answer to this claim we say (1) that if it were possible that demurring to the complaint would have this effect, it could only occur when the notice itself is set forth in the complaint. The allegation that the notice required by statute was given, is a legal conclusion and not a fact, and is therefore not ft proper or material allegation of the complaint. Chapman v. Nobleboro, 76 Me. 427; Dickie v. Boston & A. R. Co., 131 Mass. 516; Shea v. Lowell, 132 Mass. 187. (2) The giving of the notice required by the statute is a provision pertaining to the remedy, and is not a part of the cause of action. The right of action against towns for injuries to person or property arising from defective highways within their limits, and which they are bound to maintain, was given by an ancient statute, and remained unchanged until 1874, (see Pub. Acts 1874, p. 196,) when an amendment was passed requiring notice to be given of the injury, and of the time and place of its occurrence, and which was an addition to the then existing law. This law was revised in 1875, (Gen. St. 1875, p. 232,) and amended in 1883, (Pub. Acts 1883, p. 283,) when the nature and cause of the injury were required to be specified. None of this legislation was intended to affect, or did affect, the plaintiff's cause of action arising under the old law; no new element was introduced affecting the plaintiff's cause of action or the defendant's liability. Both remain the same as under the old law. The provision requiring notice was intended to apprise towns of defects in their highways, and of the occurrence of injuries for which they were made liable under the existing statute, and to give them an opportunity to investigate, in the day and time of it, whether the injuries complained of had in fact occurred, and to ascertain whether the highway was in fact defective, and to collect and preserve the evidence of these facts before the same was lost or became inaccessible. The language of the statute plainly indicates that this provision as to notice affects the remedy only; it is peculiarly appropriate for that purpose. "No action for such injury shall be maintained unless," etc. It is not a condition precedent to be pleaded, but a limitation imposed upon the right of the plaintiff to maintain an action already given by other statutes, or by other and independent clauses of the same statute, if he fails to prove, upon the trial of the case, that he gave the notice required by law. If the notice offered in evidence is insufficient, it is no notice, and the action cannot be maintained; the suit must be dismissed. This limitation is analogous to that of the statute of limitations and of the statute of frauds. They are all statutes regulating the maintaining of actions, and do not create or limit the cause of action. The Vermont statute relating to highways is in this particular identical with ours, and is construed in accordance with this view. Kent v. Lincoln, 32 Vt. 591; Doyan v. School-district, 35 Vt. 520; Matthie v. Barton, 40 Vt. 286; Bartlett v. Cabot, 54 Vt. 242; Low v. Windham, 75 Me. 113; Chapman v. Nobleboro, 76 Me. 427; Fanton v. Middle-brook, 50 Conn. 44. (3) But assuming that it is a necessary allegation of the complaint, the defendant, by demurring in an action of tort for unliquidated damages, where they are not necessarily entire and indivisible, admits a cause of action for the sole purpose of recovering nominal damages. If the plaintiff demands substantial damages, his proof must follow the allegations of the complaint as closely as if the case stood upon the general issue; and the defendant has the right to disprove those allegations, or prove other facts that show the cause of action to be unfounded. If the plaintiff fail in his proof, or the defendant disprove the cause of action, nominal damages only are recoverable. If in this case the allegation of notice is material, the plaintiff must prove it by legal and sufficient evidence,...
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