Belden v. Granniss

Park, J. The defendants ask that judgment be arrested in this ease, on the ground that there is a misjoinder of counts in the plaintiff’s declaration. The declaration contains two counts. The first is in trover for the conversion of certain goods, wares and merchandise belonging to the plaintiff, and the second is in trespass, for the taking and carrying away of the same articles. By the common law these counts can not be joined. But we have a statute which provides that “ one or more counts in trespass on the ease founded in tort, may be joined with one or more counts in trespass, in the same declaration, when all of such counts are for the same cause of action ; ” and the question is, whether this statute authorizes the joinder of these counts. The defendants claim that the second count sets forth, not only the cause of action described in the first count, but likewise a trespass to the real estate of the plaintiff; and also a cause of action in case, for the injuries resulting to her in the loss of business, and in being subjected to trouble and expense in procuring other goods. If the defendants are correct in the view they take of the case, there is manifestly a misjoinder of counts; but we are satisfied, from a careful examination of the authorities, that the allegations in the second count fall far short of being sufficient to sustain the claim of the defendants. That count sets forth with particularity the circumstances attending the trespass upon the goods, and then proceeds to describe the consequences resulting to the plaintiff from the wrongful act of the defendants in taking and carrying away the property, as follows, to wit: “that the defendants, by forcibly taking possession of the store of the plaintiff, and by seizing said goods, and by putting men in said store, and entering therein themselves, did completely cause the business of the plaintiff to cease, and did prevent said workmen in the employ of the plaintiff [515] from continuing their said work, and did hinder, obstruct and stop the business of the plaintiff for a long space of time, to wit, for the space of three days, and did cause the plaintiff great expense in traveling to and being detained in the city of New York, for the purpose of purchasing other goods to supply the place of those taken, &c.” It is clear in all this that the sole ground of complaint made by the plaintiff, is the trespass committed upon the goods, and that those matters therein set forth, which the defendants claim constitute separate causes of action, were alleged merely to aggravate the damages resulting from the trespass. But let us examine the claims of the defendants more particularly ; and first, with reference to the question whether a trespass to the real estate is alleged. The language is, “and the defendants, by forcibly taking possession of the store of the plaintiff, and by seizing said goods, and by putting men in said store, and entering therein themselves, did completely cause the business of the plaintiff to cease, &c.” There is no sufficient allegation here that the defendants broke and entered the premises of the plaintiff. And if the language used could be construed into such a claim, there are other elements wanting to constitute a cause of action. One may be mentioned which is sufficient to put at rest this claim of the defendants. It no where appears in the declaration that the plaintiff asks to recover damages for any trespass committed to her real estate. No complaintis made of that. And certainly she could not recover damages for which she did not ask. All the complaint made in this part of the count is in relation to the business of the plaintiff. She charges the defendants with causing her business to cease. How ? “ By forcibly taking possession of the store of the plaintiff, and by seizing said goods, and by putting men in said store, and entering therein themselves.” If the plaintiff has recovered damages by reason of the allegation complained of, it must have been confined to the injury done to her business. But injury done to the business of the plaintiff is distinct from [516] an injury done to her premises. We are not now considering whether, in an action of trespass to real estate, the plaintiff may not aggravate the damages, under proper averments, by showing that the trespass resulted in the destruction of the plaintiff s business. But, in such a case, the ground of complaint must be the trespass committed to the premises. In this case no such complaint is made, and we therefore dismiss this claim of the defendants. The defendants claim further that the latter part of the second count sets forth a distinct cause of action in case, for an injury done to the business of the plaintiff, and also in causing her expense in procuring other goods. In considering this question, it should be borne in mind that the statute which authorizes the joinder of trespass and trover, does not alter at all the character of either form of action when joined. The principles of law applicable to each when standing alone, are applicable to each when joined in the same declaration. Now it has long been established that in actions of trespass vi et armis, byway of aggravation, the plaintiff may recover damages for that which, alone considered, might furnish a good cause of action in case; as, in trespass quare clausum fregit, the plaintiff may recover damages for the seduction of his wife or daughter; or, as in the case of Barnum v. Vandusen, 16 Conn., 200, for the damage sustained by the communication of a deadly and contagious disorder to his sheep. The cases of Boerum v, Taylor, 19 Conn., 123, Dickinson v. Boyle, 17 Pick., 78, and Anderson v. Buckten, 1 Strange, 192, are to the same effect. Indeed, the principal is too familiar to require discussion. The question then is, whether the allegations in the second count, which the defendants rely upon in support of their claim, set forth merely matter of aggravation. We have already expressed an opinion on this question. We think they do. We think that the ground of complaint is the trespass committed upon the goods. The goods were used by the plaintiff in carrying on the business of a milliner. They were kept in a certain store. Now the plaintiff charges the defendants with seizing the goods, and, as a consequence of [517] the act, that her business was interrupted, and she subjected to expense in purchasing other goods to supply their place. The taking of the goods resulted in such consequences, and we see no reason why the plaintiff may not properly recover damages therefor under the allegations of this declaration. The case of White v. Mosely, 8 Pick., 356, sustains the view we have taken. The action was in trespass for destroying part of a mill. The plaintiff alleged an interruption in the use thereof, and the consequent loss in the profits resulting therefrom, and was allowed to recover for such injury. The defendants rely upon the case of Boerum v. Taylor, 19 Conn., 123, and the recent case of Havens v. Hartford & New Haven R. R. Co., 26 Conn., 220, in support of their claim. A brief examination of these cases is sufficient to show that they have no bearing on this case favorable to the defendants. In the case of Boerum v. Taylor, the first count was in trespass, for an injury to a certain jug and a quantity of liquor contained in the same, by putting certain noxious substances therein, by means of which the jug became injured and the liquor spoiled. The second count was in case, for an injury to the health of the plaintiff. After setting forth that the plaintiff was possessed of a certain other jug, and a certain other quantity of liquor, the pleader goes on to state, in substance, that the defendant, then and there, wickedly and maliciously intending to administer the liquor to the plaintiff, and cause him to drink thereof, did put the noxious substances therein described into the said liquor, which rendered the same unwholesome, and the plaintiff, being ignorant thereof, drank of the same, to the great injury of his health. The burden of complaint in the second count is the injury to the health of the plaintiff, and the mixing the noxious substances with the liquor is spoken of merely as the means by which the defendant inflicted the injury. Had the second count been in trespass to the property, and the injury to the person been alleged as consequential damages, the case would have been parallel with the present one, and the legal difficulty would have been avoided, as is strongly intimated by the Chief Justice in giving the opinion [518] of the court in that case. But, as the case stood, there was clearly a misjoinder of counts. In the case of Havens v. Hartford & New Haven R. R. Co., a misjoinder likewise appears. The second count contains a cause of action not found in either of the others. The other counts set forth only an injury to the "person of the plaintiff, whereas the second count sets forth, not only an injury to the person, but likewise to the property of the plaintiff. The injury to the property is particularly described, and is made a distinct ground of complaint in no way connected with the injury to the person. There is, therefore, a marked distinction between the present case and the cases referred to by the defendants, so much so that the defendants can derive no aid from them. We therefore advise the superior court to overrule the motion in arrest, and render judgment on the verdict. In this opinion the other judges concurred. Motion in arrest overruled.