Dunbar v. Jones

• Decision Date: 25 July 1913
• Court: Connecticut Supreme Court
• Parties: DUNBAR v. JONES.

87 A. 787

87 Conn. 253

DUNBAR

v. JONES.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Appeal from Superior Court, Litchfield County; Lucien F. Burpee, Judge.

Action by Ida M. Dunbar against Frederick

B. Jones, for injuries caused by the negligent operation of an automobile. Judgment for plaintiff in double the amount of the damage as found by the jury ($1,000), and defendant appeals. Reversed and remanded, with directions to render Judgment for single damages.

Samuel A. Herman, of Winsted, for appellant.

Walter Holcomb, of Torrington, for appellee.

RORABACK, J. The complaint is susceptible of a double character. It states facts which would suffice for recovery under the provisions of section 11, c. 211, p. 1144, Pub. Acts 1909, which provides that "no person shall operate a motor vehicle on the public highways of this state recklessly or at a rate of speed greater than is reasonable and proper, having a regard to the width, traffic, and use of the highway, or so as to endanger the property or the life or limb of any person," and also under those of chapter 216, Pub. Acts 1905, as amended by Pub. Acts 1909, c. 268. Section 3 of this act so amended reads as follows: "Every person who shall, by neglecting to conform to the provisions of section two of this act, cause injury to the person or property of another, thereby causing such injury, shall pay to the party injured double or treble damages, as, in the discretion of the judge of the court in which the action is pending, shall seem just, together with the costs of such action." The judge in his instructions to the jury recognized the dual nature of the plaintiff's action, and gave the plaintiff the full benefit of both causes of action. The trial resulted in a general verdict of $1,000 for the plaintiff. Thereupon the plaintiff filed a motion that she be awarded double or treble damages. The court allowed double damages under the provisions of the Public Acts of 1905, as amended by the Public Acts of 1909. In this there was error. Prom the allegations contained in the complaint, and from the charge, it is clear that this case was not, as the plaintiff claims, exclusively based and tried upon the provisions of the Public Acts of 1909, which gave the trial judge the right to double or treble the damages assessed by the jury.

In the absence of a special verdict it was impossible for the trial court to determine whether or not the jury assessed damages under the statute upon which double damages were awarded. Statutes allowing the recovery of double or treble damages as increased damages for injuries suffered by the negligence of another are generally regarded as remedial. In so far as chapter 216 of the Acts of 1905, as amended by chapter 268 of the Acts of 1909, requires the person at fault to pay to the injured party a greater sum than that which measures the injury sustained, though not strictly penal, it so far partakes of the nature of a penal statute that it could be construed with reasonable strictness in determining whether the act complained of comes within the description in the statute of the acts for which the person in fault is made liable. Dubreuil v. Waterman, 84 Conn. 47, 51, 78 Atl. 721. "In trespass, where the declaration contains several counts, some at common law and some under statute, and entire damages are assessed, they will not be trebled where this is allowed only on the statutory counts, and it does not appear that they were assessed on them alone." Lowe v. Harrison, 8 Mo. 350. The jury under an act entitled "An act to prevent certain trespass" can assess only single damages, and, when a proper case is made out for trebling the damages, it can only be done by the court. A court is not authorized to treble the damages assessed by the jury by a general verdict, in a case where the petition contains counts under the statute and at common law, or the petition goes for the wrongful entry "and" other damages. Brewster v. Link, 28 Mo. 147. To bring this case within the provisions of section 3 of the Acts of 1905 as amended by the Acts of 1909, it should clearly appear that the case was tried, and that the jury found for the plaintiff under this statute, and not for any other alleged cause of action. This does not appear.

The plaintiff contends that some of the recent decisions of this state indicate that in statutory actions it is unnecessary to aver that the action as based upon the statute, if the averments of the complaint are such as to show that the action is brought under the statute and not otherwise. Such is not the present case. When a statute like the one upon which the plaintiff now relies permits the plaintiff to recover twice or thrice the damages given by the jury, it is necessary that the claim for relief should advise the defendant of an intention to claim such a remedy. See Dubreuil v. Waterman, 84 Conn. 47, 52, 78 Atl. 721. There is nothing in the complaint now before us to indicate that the plaintiff intended to claim anything more than single damages.

Error is assigned because the court denied the defendant's motion to set aside this verdict because it was against the evidence. The only witnesses to the accident were the plaintiff, the defendant, his three daughters, and his mother-in-law. What actually occurred when the plaintiff claimed that she sustained her injuries was confined to the testimony of these persons. The testimony of the plaintiff upon this branch of the case was corroborated in part by a witness, who stated that he was at the place where the accident occurred and observed the tracks of the plaintiff's wagon and of the defendant's automobile before any other vehicles passed. The testimony of these witnesses, if credited by the jury, would have warranted them in finding facts which under the instructions given would have justified the verdict rendered. Their conclusion was not such as to denoted hat some mistake was made in the application of legal principles, or to justify the conclusion that they, or...