Havens v. Hartford & New Haven Railroad

Hinman, J. This is a motion in error from the judgment of the superior court founded upon the insufficiency of the plaintiff’s declaration. The first count in the declaration is in trespass, for forcibly ejecting the plaintiff from the defendants’ cars and beating and kicking him in so doing, he .at the time being properly and regularly therein as a passenger from New Haven to Middletown. The other counts are in case, and are alleged to be for the same cause of action ; but the second count not only alleges an injury to his person by being carelessly thrust from the defendants’ car by their agents and servants, but it also alleges that for a certain hire and reward the defendants also undertook to transport safely to said Middletown the plaintiff’s tool chest, containing his tools of the value of one hundred dollars, and that they so negligently handled and transported said tool chest, that by reason of their negligence and carelessness they greatly injured the same. Now it is unnecessary to consider whether-this portion of the count, assuming it to amount to a distinct ground for the recovery of damages, independently of the personal injury, would render the count bad for duplicity, since that is a defect which can only be taken advantage of upon special demurrer, and if not thus demurred to this portion of the count must be answered by plea, because the whole decía [225] ration must be answered, and as it requires an answer, it of course lays the foundation for a recovery, whatever may be true in regard to the rest of the count. Holly v. Brown and others, 14 Conn., 255. There is, as we have said, an averment that this count is for the same cause of action as in the first count is alleged. Tn a doubtful case, or in a case where the two or more causes of action might possibly be the same, such an averment probably would control on such a point. But it requires no argument, and is susceptible of none, to show that an assault and battery is a different cause of action from an injury caused by negligence to a chest of tools. As was said in Boerum v. Taylor, 19 Conn., 122, changing only the phraseology to make it apply to the circumstances of the case, one is an injury to the person, as its direct result, and the other is an injury to property, as its indirect and more remote consequence. But it was said that the allegations in the second count in respect to the injury of the chest of tools, were mere matter of inducement, as furnishing a reason why the plaintiff refused to give up his ticket, and not an independent ground of action. We do not think this view of the case can be sustained. There is nothing to indicate that such was the object of these allegations. They are not in any way connected with what is said'in respect to the ticket. And that part of the count may as properly be considered as connected with the allegations in respect to the personal injury, as with the injury to the chest of tools. It immediately follows the statement of the latter injury and immediately precedes that of the former, and if intended to refer to either was probably intended to be equally applicable to both. Besides, the allegations in respect to the injury to the chest of tools contain every thing that is essential to a recovery. It is alleged that the defendants undertook for certain hire and reward to transport it safely, and that while they were transporting it, and before the cars reached Middletown, they so negligently and unskillfully handled and transported it, as by reason of said negligence, greatly to injure and damage the same. [226] This is all that is required to constitute a good count for an injury to property in the custody of .another for the purpose of transportation; and if the plaintiff proved such an injury as he here states, we can not doubt that the court gave him damages for it. With every inclination, therefore, to sustain the declaration, if it could be done consistently with‘the rules of law, we feel constrained to say that we do not think it can be done. There is therefore a misjoinder of counts in the declaration, not authorized by the statute, which only authorizes one or more counts in trespass to be joined with one or more counts in trespass on the case, where all such counts are for the same cause of action, and this defect renders the judgment erroneous. In this opinion Ellsworth, J., concurred. Storrs, C. J., being disqualified by interest did not sit. Judgment reversed.