Crogan v. Schiele

• Decision Date: 03 July 1885
• Parties: CROGAN and Wife v. SCHIELE.
• Court: Connecticut Supreme Court

5 A. 673

53 Conn. 186

CROGAN and Wife

v. SCHIELE.

Supreme Court of Errors of Connecticut.

July 3, 1885.

For majority opinion see 1 Atl. Rep. 899.

PARK, C. J. I concur in the foregoing opinion in all respects except in the view there presented of the effect of a demurrer overruled on the hearing in damages. I think the judge who wrote it has somewhat misapprehended the effect and extent of our decision in Crane v. Eastern Transp. Line, 48 Conn. 361. I will briefly state my views upon the point.

A demurrer admits the truth of the alleged facts for the sole purpose of testing their legal sufficiency. If the demurrer is overruled, and the defendant answers over, the admission cannot be used as evidence against him. It stands like any other case where the allegations of fact are denied,—the facts are determined by the proof, and not by the pleadings. The principle is the same when the defendant, instead of answering over, submits to the adverse judgment on the demurrer. This case is for unliquidated damages. In the absence of any proof the plaintiff recovers nominal damages only. The burden is on him to show the extent of the injury. The allegations of injury and damage, although admitted by the pleadings, are not substantive evidence in his favor. The extent of the injury is to be proved like similar facts in any other case. When he has done that, no evidence being offered of due care by the defendant, or contributory negligence on the part of the plaintiff, the plaintiff will recover all the damages proved. That is on the ground that the demurrer, on which the judgment rests, admits the defendant's negligence and due care on the part of the plaintiff. But, notwithstanding the demurrer, we have repeatedly held, and that is now the settled doctrine in this state, that it is competent for the defendant to controvert the facts as to negligence, not to affect the question of liability, but solely to affect the amount of damages. But such evidence is independent and outside of the pleadings. In this respect the burden is on the defendant; and that is the extent of the decision in Crane v. Eastern Transp. Line, as I understand it. If he offers no evidence, judgment goes against him for all the damages proved. But if he offers evidence on the subject of negligence, the question must be determined wholly by the evidence. As the defendant takes the burden, he must establish his claims by a preponderance of proof. The admission by the demurrer is not to be used as evidence against him. The effect of that is exhausted in conclusively establishing his liability for some damages, and casting upon him the burden of proof. The admission cannot be thrown into the scale in weighing the evidence.

With this qualification I fully concur with Judge Granger in the opinion of Judge Stoddard.

CARPENTER, J., (dissenting.)

The plaintiff's case proceeds upon the theory that the pit or area on the defendant's premises made the use of the sidewalk by the public dangerous, and that the plaintiff, Mrs. Crogan, while using the sidewalk, fell into the pit and was injured. Both counts in the complaint are adapted to that theory, and the case in the court below was tried and decided on that ground.

The defendant's claim, which was sustained by the court, was (1) that the plaintiff was not injured while in the exercise of any rights as a traveler upon a highway, but was upon the defendant's premises, seeking to find the door to his factory, and consequently that there was a substantial variance; (2) that the plaintiff was a trespasser; and (3) that upon the facts the plaintiff was entitled to only nominal damages.

The errors assigned by the plaintiff follow exactly the claims made by the defendant. We see no suggestion in the record that any claim was made by the plaintiff that the defendant was liable on any other ground than that he had exposed to harm those using the highway. If, then, the plaintiff, as a traveler on the highway, received no injury, the cause of action as alleged in the complaint is not proved, and she can recover only nominal damages. Upon principle, this must be so. The defendant's liability to...