Lennon v. Rawitzer

• Decision Date: 27 September 1889
• Court: Connecticut Supreme Court
• Parties: LENNON v. RAWITZER et al.

19 A. 334

57 Conn. 583

LENNON

v. RAWITZER et al.

Supreme Court of Errors of Connecticut.

Sept. 27, 1889.

Appeal from superior court, New Haven county; FENN, Judge.

Action by John Lennon against Adolf Rawitzer and another, to recover damages for an injury caused by falling into an elevator well in a factory owned by defendants. Defendants filed an answer, but afterwards withdrew their appearance, and submitted to a judgment by default. Plaintiff appeals from a judgment of the court assessing damages.

J. P. Pigott and W. S. Pardee, for appellant. H. Stoddard and W. F. Davis, for appellees.

LOOMIS, J. This is a suit to recover damages for a personal injury to an operative employed in the defendant's factory, occasioned by his falling into an elevator well while attempting to operate the elevator. The defendants filed an answer, but afterwards, with the consent of the court, withdrew their appearance, and submitted to a judgment by default. The court, upon the defendants' motion, granted a hearing in damages, and assessed the same at the nominal sum of $50. The plaintiff contends that the judgment was erroneous in three respects: First. Because the court assessed the damages, instead of leaving it to a jury; secondly, because the burden of proving how the accident happened was put on the plaintiff; thirdly, in holding the defendants free from negligence upon the facts found in relation to the gate.

1. The plaintiff's contention under the first head hardly reaches so far as to overturn the uniform practice of the courts of this state ever since they have existed,—a practice concerning which Judge Swift, our most approved text-writer, in volume 2, p. 268 of his System, published about a century ago, said: "Our courts possess the same power to assess damages as a jury in England upon a writ of inquiry issued to the sheriff for that purpose. There, in these cases, the court must issue a writ to the sheriff, commanding him by twelve men to inquire into the damages and make return to the court, which process is called a 'writ of inquiry.' The sheriff sits as judge, and there is a regular trial by twelve jurors to assess the damages. This mode of proceeding must be productive of expense and delay, and the practice of this state, introduced by our courts without the authority of a statute, of assessing damages themselves, without the intervention of a jury, is one of the many instances in which we have improved upon the common law of England." This practice has also, in repeated instances, received the express sanction of this court. The last time was in 1885, in Seeley v. City of Bridgeport, 53 Conn. 1; and for other instances see the cases there cited on page 2. Moreover, a statute of this state, first passed in 1821, and now found in section 1106 of the General Statutes, positively requires the court to make the assessment in these words: "In all cases where judgment is rendered otherwise than on a verdict in favor of the plaintiff, the court shall assess the damages which he shall recover."

But the plaintiff would avoid all this array of authority by raising a distinction, founded on the fact that in this case the defendants had actually appeared and filed an answer before they suffered a default. In our view, such a distinction is not well founded; for it is not only contrary to our practice, but contrary to the requirements of the statute, which applies in terms to all cases where judgment is rendered otherwise than on a verdict. If it be suggested that our answer involves a begging of the question, in that no judgment ought to have been rendered by default till after a jury had returned a verdict in damages, we answer again, that such a course is neither in accord with our law nor the common law. Our practice first diverges from that of the common law after judgment by default has been rendered, for such a judgment is a common-law judgment, which was entered when the defendant neglected or refused to appear, or when he acknowledged the action to be just, and withdrew his appearance. Blackstone in the third volume, p. 397, of his Commentaries, says, in stating in what cases an assessment of damages after judgment is to be had: "And this happens, in the first place, where the defendant suffers judgment to go against him by default or nihil dicit, as if he puts in no plea at all to the plaintiff's declaration; by confession or cognovit actionem, where he acknowledges the plaintiff's demand to be just; or by ...