van Hoosear v. Town of Wilton

• Decision Date: 30 June 1892
• Citation: 25 A. 457,62 Conn. 106
• Parties: VAN HOOSEAR v. TOWN OF WILTON.
• Court: Connecticut Supreme Court

25 A. 457

62 Conn. 106

VAN HOOSEAR

v. TOWN OF WILTON.

Supreme Court of Errors of Connecticut.

June 30, 1892.

Appeal from court of common pleas, Fairfield county; Perry, Judge.

Action by David H. Van Hoosear against the town of Wilton. Judgment for plaintiff. Defendant appeals. Reversed.

L. Warner and J. H. Light, for appellant.

J. B. Hurlbutt, for appellee.

TORRANCE, J. This is an action brought under section 3752 of the General Statutes of this state to recover compensation for loss and injury caused to the plaintiff's sheep by dogs. The plaintiff is a resident of Wilton, and, previous to the bringing of this suit, had notified the selectmen of Wilton of his loss, as required by the statute, and they had estimated his damages at $84, and given him notice of such estimate. The town has always been ready to pay this sum to the plaintiff, but he, claiming that the damage sustained by him was greater than $84, refused to receive that sum, and brought this action.

So much of the section of the General Statutes under which this action is brought as it is necessary to quote, reads as follows: Sec. 3752. "When any person resident in this state shall sustain any damage to his sheep, lambs, or cattle by reason of their being killed or injured by dogs, he shall give information thereof to one of the selectmen of the town in which such damage was done, within twenty-four hours after he has knowledge of the same, and thereupon said selectmen shall estimate the amount of such damage; and all damage done by dogs to sheep, lambs, or cattle, proved to the satisfaction of the selectmen to have been committed in their town, shall be paid by such town." In the court below the defendant claimed that the plaintiff was conclusively bound in this action by the estimate made by the selectmen, and could not legally prove nor recover as damages any sum in excess of that estimate; while the plaintiff claimed that he was not so bound, and was not so limited in his proof or in his right to recover. The court sustained the claim of the plaintiff, found his damages to be more than $84, and rendered judgment in his favor there for.

The only question raised in the court below which it is material to notice on this appeal is the one raised by these conflicting claims, namely, whether or not the plaintiff is conclusively bound in this action by the estimate of damages made by the selectmen. The decision of this question depends upon the construction of the statute under which the action is brought, for the plaintiff's right to recover against the town is based solely upon the provisions of the statute. The liability of the town to the plaintiff under the statute is a strictly limited and peculiar liability, and, in order to recover against the town, the plaintiff must bring himself strictly within the statutory provisions. He must show that he was a resident of this state at the time his sheep, lambs, or cattle were injured; that he sustained such damage; that it was caused by dogs; that it was done in Wilton, and proved to have been so done to the satisfaction of the selectmen of that town; and that he gave information of his loss as required by law. All this the plaintiff concedes, and all these matters are fully sot out in his complaint. He treats them as conditions precedent to his right of recovery. But the statute also provides that the selectmen shall make an estimate of the amount of such damage. Is the existence of such an estimate also one of the statutory conditions precedent of the plaintiff's right of recovery? The plaintiff does not allege the existence of such an estimate in his complaint, and the argument for the plaintiff before this court proceeded upon the theory that the existence of such an estimate was not a necessary element in the case. We think otherwise. The statute does not, in express terms, give the plaintiff a right of action against the town. It merely imposes upon the town, under certain specified conditions and circumstances, the duty to pay money to the plaintiff. By implication the plaintiff has a right in some form of action to recover the amount of money due under the statute when it becomes due, and not before.

The right of the plaintiff against the town, and the duty of the town towards the plaintiff, are correlative and coextensive, and come into existence at one and the same time. If the town is bound to pay the actual damage which may be found by the tribunal before which a suit for such damage is finally brought, irrespective of the estimate of the selectmen, then the plaintiff is entitled to recover such sum. On the other hand, if the statute obligates the town to pay only the amount of damages estimated by its selectmen, then, in the absence of fraud or mistake in making such estimate, the sum so found must be the limit and measure of the plaintiff's right against the town. What, then, does the statute say upon this question? The plaintiff claims that the statute does not expressly nor by necessary implication require the town to...