Administrator of Whitney v. Town of Clarendon

The opinion of the court was delivered by Bennett, J. We think that there was no objection to the defendant’s availing themselves, under the general issue, of the matter offered in defence. In an action on the case any thing may be given in evidence under the general issue, which destroys the right of action. If damages are sought to be recovered for beating the plaintiff’s horse, by means'of which he lost his service, the defendant may well show, under the general issue, that the beating was lawful. Str. 872. Bul. N. P. 78. The question then arises, does the former recovery destroy the plaintiff’s right of action in this case ? Or in other words, can there be a succession of actions to recover damages resulting from one and the same injury? The injury inflicted upon the person of the son of the plaintiff by the fall of the bridge, by reason of its insufficiency, is one and entire, though there may be a continuation of the damages resulting from that injury. It is contended on the part of the plaintiff, that in the action by the parent, for the loss of service, the gist of the action is the loss of service, and that the parent may have successive actions from time to time, to recover the resulting damages, as it shall suit his pleasure. There should be an end of litigation ; and I should regret it, if the law was so settled, that every fresh damage would give a new cause of action. In Hodsoll v. Stallebrasse, 39 E. C. L. 94, it was held, that both the injury and damage must concur, to give a right of action, and [256] that the damages were not the sole cause of action. That was an action by the master for the loss of the service of his apprentice, occasioned by the bite of a dog; and it was contended, that the action was not grounded upon the injury, but upon the resulting damage. But the court directed prospective damages to be assessed by the jury, on the ground, that a second action could not be brought to recover damages resulting from the same injury. That case was fully considered and is decisive of the one at bar. Upon the authority of that case the plaintiff in this action might have recovered prospective damages in his first action, and should not have been confined to such damages, as had in fact accrued at the time, when the suit was brought. If the plaintiff, by his own declaration, confined himself to such damages as had resulted from the injury within a given time after it happened, it was the pleader’s own fault ; but, as the time is only limited under a vide licit, it may be questionable, whether such would have been its effect. Sergeant Williams, in his note to the case of Hanibleton v. Veere, 2 Saund. 171, lays down the proposition, that in trespass, and in tort, new actions may be brought as often as new injuries and wrongs are repeated, and consequently prospective damages should not be given in a case, in which there is a continuation of the injury. There is no intimation, that every fresh damage gives a new action. Though it should be admitted, that, in an action by the master, the loss of service is the gist of the action, yet it is a non sequitur, that damage alone can give the action. In trover the conversion is the gist of the action ; yet there is no right of action, unless the conversion involves an injury to the plaintiff’s right of property. • The case of Hambleton v. Veere, 2 Saund. 169, is relied upon to sustain the decision of the county court. We think that case is distinguishable from the one now before us. That was an action for enticing the plaintiff’s servant to depart from his service ; and the plaintiff claimed damages for the loss of service for the whole of the residue of the term of the apprenticeship. The term had not expired, and, upon a motion in arrest, it was held to be error, upon that declaration, to assess damages beyond the time of the exhibition of the bill. It is to be remarked, that it was alleged in the declaration, that the person enticed away had been retained in the service of the plaintiff, as his apprentice, for the term of nine years, [257] and that having served the plaintiff Jive years, he was then enticed away by the defendant, he (the defendant) well knowing the premises ; whereby the plaintiff lost the service of his apprentice for all the residue of the said, term to come. It appears from the declaration, that the injury was not complete when the action was brought. The defendant enticed the servant away, knowing he was the apprentice of the plaintiff for the term of nine years, and consequently every detention of the servant, with such knowledge, was a fresh injury; and when new damage had accrued, a second action might well be sustained, as in the case of a continuation of a nuisance, or offalse imprisonment. The case of Ward v. Rich, 1 Ventr. 103, rests upon the same principle. That was an action for enticing away the plaintiff’s wife and keeping her from the plaintiff, until, as was alleged, a certain day, which was some time after the suit was commenced. After verdict for the plaintiff judgment was arrested, upon the ground, that it must be intended, that the jury gave damages for the entire term specified in the declaration. In this case the subsequent detention of the wife, after action brought, was a new injury. In Brasfield v. Lee, 1 Ld. Raym. 329, the continuation of the false imprisonment, after action brought, was a fresh injury. The overflowing of the plaintiff’s lands is a continuation of the injury, and upon sound principles there may be, in such cases, successive actions. It was admitted by the counsel, in Hodsoll v. Stallebrasse, 39 E. C. L. 94, that, if the action had been brought by the master for an injury to his person, the court might have given prospective damages, but they urged, that, when the action was case for loss of service, a different rule should obtain. The court,- however, repudiate any distinction in the two cases. It is true, that, in the argument of that case, a case under the name of Malachy v. Soper is referred to by counsel, which would seem to sustain the decision below. That, it was said, was an action for slandering certain mining shares; and the damages were confined by Littledale, J., before whom the cause was tried, to such as had accrued when the action was commenced. It may be said of this case, that it purports to be but an unreported nisi prius case; and it was not permitted, by Littledale himself, to furnish a rule, to govern the case then before the court. The case of Roberts v. Read et al., 16 East 215, which seems to be much [258] relied upon by the plaintiff, has very little analogy to the one now 'before us. The highway act of 13 George III directed, that actions against any persons, for any thing done or acted in pursuance of that act, should be commenced within three calendar months after the act was committed. That case simply decides, that, when the highway surveyors had undermined a wall adjoining the highway, which did not fall until more than three months afterwards, the action was not barred. The falling of the wall, the action being case, was considered the gravamen of the action, — the consequential damage the cause of action. Though it may be said, that the loss of service is the foundation of this action, yet we think that a second action cannot be sustained by the parent for damages resulting to him from the personal injury to the son, by reason of the fall of the bridge. To maintain a second action for a fresh damage, in a case in which there was no new injury, would be novel in principle, and not warranted by authority. Though it may be impracticable to estimate prospective damages, in a case like the present, with mathematical certainty, yet the difficulty is no greater, than in an action for an assault and battery upon the plaintiff, by means of which he has been disabled from pursuing his business. It has been the usual practice, to give prospective damages against towns, for injuries resulting from insufficiency of highways, in cases which called for them. The result is, the judgment of the county court is reversed, and the cause must be remanded to the county court for farther trial, unless the plaintiff shall elect to become nonsuit. During the term the plaintiff became nonsuited.