Snyder v. Witt

• Citation: 42 S.W. 441
• Parties: SNYDER et ux. v. WITT et al.
• Decision Date: 27 October 1897
• Court: Supreme Court of Tennessee

42 S.W. 441

SNYDER et ux. v. WITT et al.

Supreme Court of Tennessee.

October 27, 1897.

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by John Snyder and Nannie Snyder, his wife, against S. K. Witt, John M. Hatcher, and the mayor and aldermen of Knoxville. Verdict and judgment for defendants. Plaintiffs appeal. Affirmed.

Noble Smithson, for appellants. Welcker & Parker, for appellees Witt and Hatcher. J. W. Caldwell, for other appellees.

WILKES, J.

Plaintiffs sued defendants for damages for personal injuries to Nannie Snyder, wife of the plaintiff John Snyder. There were a verdict and judgment for defendants, and plaintiffs have appealed and assigned errors. The facts necessary to be stated are that defendants are the keepers of hucksters' stalls at the market house in Knoxville. They placed two push or hand carts on a narrow pavement in front of their stands so that they protruded over the curbing, and, while the plaintiff Nannie Snyder was standing on the pavement or sitting on a box, an ice wagon belonging to J. K. Griffin struck the push carts, and drove them violently against her, injuring and bruising her. The declaration set out the cause of action in two counts, both substantially as stated. The defendants filed two pleas: First, not guilty; and, second, accord and satisfaction, in that the plaintiffs had sued J. K. Griffin previously to bringing this action, and received from him $110 in full payment and satisfaction of the injuries sustained, and that the cause of action in each case was the same. Plaintiffs demurred to the second plea on several grounds: First, that defendants did not, by their plea, admit that they committed the wrong, and hence the plea was defective in setting up an accord and satisfaction; and, again, that the facts stated do not present such a case as would entitle defendants to rely upon an accord and satisfaction, as no proper connection with Griffin is alleged, and the pleas do not state that the wrongs were committed jointly with Griffin; and, third, that, while the declaration contains two counts, only one plea is filed to both jointly. The demurrer was overruled, and the action of the circuit judge is assigned as error, and supported by an able and ingenious argument.

The first error assigned is that the plea demurred to is a plea in confession and avoidance, and yet it fails to confess the wrong, so that its effect may be avoided. The only words of confession in the plea are that, "if plaintiffs have any cause of action, it is against them and said Griffin jointly," etc. In Chitty on Pleading (16th Am. Ed., vol. 1, p. 678) it is said: "If a defendant, in his answer, seek to avoid a cause of action, he need not confess the cause of action. He has a right to say, `I deny your alleged cause of action, but, if you succeed in proving it, still I am not liable, because,' etc." In Caruther's History of a Lawsuit (page 191), the author, in speaking of pleas in confession and avoidance, says: "Such a plea may not and generally does not expressly confess what the declaration alleges, but there is always an implied confession. It is a rule of practice in courts of law that whatever is not denied is confessed."

It is next objected that there is only one plea to two counts. It is admitted that the two counts in the declaration are virtually the same, and that they state the same cause of action in different verbiage. It is not necessary in such cases to repeat the same plea as often as there are counts in the...