Rowen v. N.Y., N. H. & H. R. Co.

• Decision Date: 12 September 1890
• Citation: 21 A. 1073,59 Conn. 364
• Court: Connecticut Supreme Court
• Parties: ROWEN v. NEW YORK, N. H. & H. R. CO.

21 A. 1073

59 Conn. 364

ROWEN

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Errors of Connecticut.

Sept. 12, 1890.

Appeal from superior court, Fairfield county; J. M. Hall, Judge.

Action by Ed ward Rowen, as administrator of Catherine Rowen, deceased, against the New York, New Haven & Hartford Railroad Company, to recover damages for the death of plaintiff's intestate. Nominal damages in favor of plaintiff were assessed by the court after a default and plaintiff appeals.

R. E. De Forest and J. H. O'Rourke, for appellant.

G. Stoddard and W. D. Bishop, Jr., for appellee.

SEYMOUR, J. This action was brought to the superior court on the first Tuesday of March, 1889, when the parties appeared; and it was continued, without answer, till October 17, 1889, when the defendant suffered a default, and moved for a hearing in damages. The motion was allowed, and the action came to the December term, 1889, of the court. The defendant gave no notice of its intention to suffer such default to the clerk of the court within 30 days after the time fixed by law for closing the pleadings, or at any other time. Before the cause was reached for trial the plaintiff claimed the right to have the damages on the hearing upon the default assessed by a jury, pursuant to the provisions of chapter 157 of the Public Acts of 1889, and filed his written motion to that effect. The court denied the motion, and itself proceeded to a hearing, and rendered judgment in favor of the plaintiff to recover nominal damages only, which it assessed at $50. The plaintiff claims that the court erred in refusing to allow his motion for a jury, and in holding that the statute referred to did not apply and entitle him to a jury upon such hearing.

The usage of our courts, founded upon uniform practice and statutory requirements, to assess damages upon a hearing after a default, without the intervention of a jury, has been so recently stated in Lennon v. Rawitzer, 57 Conn. 583, 19 Atl. Rep. 334, as to require no restatement. In 1889 the general assembly passed an act providing that "in every action of tort in which the defendant suffers a default, and there is a hearing in damages, said hearing in damages shall be to the jury, unless the defaulting defendant shall have given notice of his intention to suffer such default, to the clerk of the court in which such action is pending, within thirty days after the time fixed by law for closing the pleadings in such action shall have expired." Sess. Laws 1889, c. 157. This act went into effect August 1, 1889, as provided by chapter 256 of the Public Acts of that year. The time fixed by law for closing the pleadings in the action expired at the end of 30 days from the first Tuesday of March, 1889. If the above act is applicable the notice to suffer a default should have been given within 30 days thereafter, and several weeks before the act went into effect. It was too late when the act became effective for the defendant to give the notice required in order to entitle itself to be heard in damages by the court. In other words, when the suit was brought, and up to August 1, 1890, the defendant was entitled by law, upon a default, to have a hearing in damages before the court. The new act went into effect August 1st, and, although then too late for the defendant to observe its requirements as to notice of default, yet, the plaintiff says, it was not too late for the rest of the act to be operative upon the case, and compel the defendant to have its damages assessed by a jury. Is the statute thus retroactive? There is no provision in the act itself that it shall affect pending suits. As a rule of construction, section 1 of the General Statutes declares that the passage or repeal of an act shall not affect any action then pending.

Does the language of the act in question indicate an intention contrary to this general provision? It went into effect, as already stated, August 1st. If it can fair ly be held to have been intended to affect suits then pending in which the 30 days after the time fixed by law for closing the pleadings had not then expired, yet it will not be "presumed, without very strong reasons for the presumption, that the legislature intended to affect cases in which it was impossible, for reasons already stated, to comply with the condition simposed. Such an intention, if existing, should not be left doubtful. In view of the rule of construction expressly imposed by the statute, the language should necessarily carry an intention to act upon pending suits, or pending suits should in terms be made subject to it. "One of the firmly-established canons for the interpretation of statutes declares that all laws are to commence in the future, and operate prospectively, and are to be considered as furnishing a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions. The rule is one of such obvious convenience and justice as to call for jealous care on the part of the court to protect and preserve it. Retroaction should never be allowed to a statute unless it is required by express command of the legislature, or by an unavoidable implication arising from the necessity of adopting such a construction in order to give full effect to all its provisions." Smith v. Lyon, 44 Conn. 178. Neither express command nor unavoidable implication requires the construction which the plaintiff contends for in this case.

The next error assigned is that the court admitted in evidence certain extracts from the records of the city of Bridgeport, against the plaintiff's objection, which were not admissible. As the finding stands, it is difficult to get at the real merits of this claim. It does not state the purpose for which the evidence was offered, nor the precise objection made to it. It only recites what took place when it was offered, quoting from the stenographer's minutes. The plaintiff claims that the records were offered for the purpose of showing the action of the railroad commissioners in excusing the defendant from sounding the statutory...