Veits v. City Of Hartford

• Court: Connecticut Supreme Court
• Writing for the Court: MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
• Citation: Veits v. City Of Hartford, 134 Conn. 428, 58 A.2d 389 (Conn. 1948)
• Decision Date: 10 March 1948
• Parties: VEITS v. CITY OF HARTFORD et al.

134 Conn. 428

58 A.2d 389

VEITS

v.CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

March 10, 1948.

Appeal from Superior Court, Hartford County; O'Sullivan, Judge.

Action by Agnes Veits against the City of Hartford and others for damages for personal injuries alleged to have been caused by a defective sidewalk and by the negligence of, and a nuisance created by, defendants William G. Govan and Hyman Malley. From the judgment for defendant Malley, which was rendered after plaintiff failed to plead further following the sustaining of the demurrer of such defendant to the complaint, plaintiff appeals.

Error and case remanded.

Morton E. Cole, Cyril Cole, Arthur W. Feinstein and Milton Krevolin, all of Hartford, for appellant.

Anthony M. Tapogna, of Hartford, for appellee Malley.

Frank A. Murphy, of Hartford, for other defendant.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

A substitute complaint was filed in this case which contained six counts. One of the defendants, Malley, demurred to it for misjoinder of causes of action, the trial court sustained the demurrer, the plaintiff failed to plead over, and judgment was entered for the defendant Malley. From that judgment the plaintiff has appealed.

The complaint is very badly framed by reason of its failure to disclose with any reasonable clarity the facts upon which the plaintiff relies for a recovery, its inexcusable redundancy and its obvious inclusion of extraneous matter. The first three counts allege that the defendants William G. Govan and Hyman Malley, stated in one count to be owners of property abutting on Front Street in Hartford, created or maintained a condition on the sidewalk in the nature of a nuisance by reason of its being slippery and unsafe, as a result of which the plaintiff suffered a fall; the fourth count alleges that the fall was due to a defective condition of the sidewalk for which the defendant city was liable under the statute; and the fifth and sixth counts allege that the condition of the sidewalk, amounting to a nuisance, was created and maintained by the city. The prayers for relief were a general claim for damages, a judgment for damages against any one of the defendants individually or two or more of them jointly on all counts except the fourth, and, in the alternative, a judgment for damages against either the city on the fourth count or the defendants Govan and Malley, or either of them, on one or more of the first three counts.

As the first three counts state, as we have said, nothing more than a case for a recovery for injuries due to a nuisance on the sidewalk created or maintained by the defendants Govan and Malley, with apparently some thought of presenting the claim in varying aspects, there was no excuse for using more than one count for that purpose, Goodrich v. Stanton, 71 Conn. 418, 424, 42 A. 74, and the use of separate counts only serves to complicate the relatively simple basis upon which recovery was sought against them. Such difficulty as the case presents is due to the inclusion of the other three counts, which seek to state grounds of recovery against the city. Section 5512 of the General Statutes contains several categories of causes of action which may be joined, and then provides: ‘The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall affect all the parties to the action, and not require different places of trial, and shall be separately stated * * *.’ The solution of the problem before us depends primarily upon the meaning of the words ‘causes of action’ as used in the quoted sentence.

The words ‘cause of action’ may have very different meanings in the various connotations in which they are used. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, 77 L.Ed. 619. Thus, in considering whether a judgment rendered in one case was res adjudicata of the issues raised in another, we said: ‘A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.’ Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725, 135 Am.St.Rep. 263. Our Practice Act, adopted in 1879, was confined to the regulation of pleadings and procedure in civil actions, and it was not intended to affect in any way substantive rights. Avery v. Spicer, 90 Conn. 576, 581, 98 A. 135; LeWitt v. Park Ecclesiastical Society, 103 Conn. 285, 299, 130 A. 387. We are, therefore, concerned only with the words ‘causes of action’ as they are involved in a matter of procedure. They appeared in the act in only one section other than that now before us, and their use there is not helpful. General Statutes § 5542. We have never before had occassion to interpret the words ‘causes of action’ as used in § 5512. Decisions in which the provision has been involved amount, however, to a practical interpretation which is entitled to much weight; and one rule adopted in 1879, under the Practice Act, is in effect a contemporaneaus exposition of the meaning and effect of the words.

The simplest situation we have dealt with is that where two or more defendants are sued in a single action on the ground that the injury to the plaintiff resulted from their concurrent torts. Sparrow v. Bromage, 83 Conn. 27, 29, 74 A. 1070, 27 L.R.A., N.S., 209, 19 Ann.Cas. 796. So we have held that in a single action a plaintiff may recover damages against one defendant and have a fraudulent conveyance made to another defendant set aside; Nowsky v. Siedlecki, 83 Conn. 109, 112, 75 A. 135; Fine v. Moomjian, 114 Conn. 226, 228, 158 A. 241; Finance Corporation of New England, Inc. v. Scard, 100 Conn. 712, 718, 124 A. 715; and that in one action a plaintiff may establish his debt against the estate of a deceased person and reclaim assets of the estate necessary for its payment from those to whom they have been wrongly distributed. Mathewson v. Wakelee, 83 Conn. 75, 79, 75 A. 93; State ex rel. McClure v. Northrop, 93 Conn. 558, 569, 106 A. 504, 7 A.L.R. 1014. In Lewisohn v. Stoddard, 78 Conn. 575, 63 A. 621, the plaintiffs, creditors of a Missouri corporation, alleged three causes of action, one in the nature of a creditor's bill to recover unpaid balances on stock subscriptions, one to recover the same balances under a statute, and one against some only of the stockholders to compel a refund of portions of capital paid to them. In considering the application to this complaint of the provisions of the statute, now § 5512, we said that the subject of the action was the indebtedness due the plaintiff and we held that not only were all the living stockholders properly made defendants but also at page 596 of 78 Conn., 63 A. 621, the administratrix of one of them, because, even if the Missouri statute did not make her liable for any balance due on the subscription made by her intestate, her presence was necessary to work out the equities between the parties.

If we approach the problem from another direction, we find that at the time of the enactment of the Practice Act the rule now § 19 of the Practice Book 1934, p. 26, was adopted. It provides: ‘Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.’ Practice Book, 1879, p. 11. Among the forms inserted in that book was one against a principal and agent for alternative relief where the authority of the agent is disputed. Practice Book, 1879, p. 30. We approved such an action in Eames v. Mayo, 93 Conn. 479, 484, 106 A. 825; in Raymond v. Bailey, 98 Conn. 201, 205, 118 A. 915, we held that a plaintiff might seek the recovery of money on the ground that it either was obtained by undue influence or was loaned; in State ex rel. Hartford-Connecticut Trust Co. v. United States Fidelity & Guaranty Co., 105 Conn. 230, 135 A. 44, we gave sanction to an action against sureties upon two bonds where the plaintiff was in doubt as to which bond covered the default claimed; and in Makusevich v. Gotta, 107 Conn. 207, 208, 139 A. 780, we approved a complaint seeking specific performance of a contract or damages for its breach.

A synthesis of these decisions leads to this conclusion: Where the facts forming the basis upon which the plaintiff claims relief constitute a single transaction or occurrence, he may sue in one action two or more defendants against whom he claims relief, and it does not matter that they may be liable concurrently, successively or in the alternative, or that the relief against each has a different legal basis. We can then define a cause of action under the provision in question as meaning a single group of facts which are claimed to have brought about an unlawful injury to the plaintiff for which one or more of the defendants are liable, without regard to the character of the legal rights of the plaintiff which have been violated. See Clark, Code Pleading, 2d Ed., pp. 127 et seq. If each defendant is so related to the group of facts constituting the primary basis of liability that upon proper proof recovery may be had against him, the cause of action comes within the requirement that it ‘shall affect all the parties to the action.’ In order that the facts upon which the plaintiff relies shall constitute a single group, they must form the primary basis of recovery against each of the several defendants, although as to some of them further facts need to be proved; or, to state the proposition in another way, the liability of each defendant must, in some aspect of the proof permissible under the allegations of the complaint, relate to and depend upon a single primary breach of duty. Patterson v....