McNary v. Chamberlain

Park, J. A majority of the court are of the opinion that the plaintiff has set forth a good cause of action in his declaration. We all hold that a privity must exist between the act of a wrong-doer and the injury complained of, in order to lay the foundation for a recovery. Connecticut Mutual Life Ins. Co. v. N. York & N. Haven R. R. Co., 25 Conn., 265 ; Miller v. East School District, 29 id., 529 ; Lamb v. Stone, 11 Pick., 527; Anthony v. Slaid, 11 Met., 290 ; Rockingham Mutual Fire Ins. Co. v. Bosher, 39 Maine, 253. The court are not divided as to the law, but are divided as to the nature and character of the case itself. ' The declaration alleges that the defendant intended to injure the plaintiff -in doing the act complained of, and we all agree that if the allegation means in fact what it purports to mean, such relation did exist and the declaration is sufficient. In the ease of Connecticut Mutual Life Ins. Co. v. N. York & N. Haven R. R. Co., Judge Storrs says: — “Had the life of Dr. Beach been taken with intent to injure the plaintiffs through their contract liability, a different question would arise, inasmuch as every man owes a duty to every other not intentionally, to injure him.” It is said in the case at bar, that the intent to injure the plaintiff was stated by the pleader as mere matter of form, like the allegation in common counts in assumpsit, where it is sometimes stated that the defendant, contriving and intending to injure the plaintiff, did not perform his contract, &c. We look upon this allegation in a different light. It is clear that an intent to injure another must accompany an act in order to give efficacy to the intent. The ground of complaint in an action of assumpsit' is, that the defendant has omitted to act as the contract requires. A contract in ordinary cases imposes an obligation upon the defendant to act. The agreement is broken by a failure to perform in this re. spect, and of course an allegation that the defendant intended to injure the plaintiff in such cases is mere matter of form, doing neither good nor harm to the declaration. But how can this be said in a case of tort, where the ground of com [389] plaint is that the defendant has done a wrongful act which resulted in injury to the plaintiff? It would seem that the allegation of the intent in this case was deemed important by the pleader, for we find it in both counts of the declaration, and if he had deemed it never so important it could not have been expressed in stronger terms than it is. Other words of similar import might have been used, but they would not have added to the force of the allegation. How then can we say that the allegation was inserted for mere form’s salce, when it is necessary to establish beyond question a natural relation between the act done by the defendant and the injury resulting to the plaintiff in consequence ? In actions of assumpsit the allegation that the defendant intended to injure the plaintiff by breaking his promise can be of no importance whatsoever. It does not enhance the damages, neither does it tend to establish a natural relation between the breach of the contract and the injury to the plaintiff. Such relation must exist without the aid of an allegation of this kind, and of course in such cases the allegation is made for no purpose but form. But how can this be said in the case at bar, where a grave question is made whether the plaintiff can recover for the mischief done him without the aid of this allegation ? A majority of the court are of the opinion that nothing appears in the declaration going to show that the allegation was inserted as mere matter of form, but on the contrary that it appears to have been deemed substantial and important by the pies ler. The demurrer admits that it is true, and we think therefore that the declaration shows upon its face a privity between the act done by the defendant and the injury to the plaintiff. The defendant contends that although he intended to injure the plaintiff, still the injury is too remote to sustain an action ; and we are referred to the case of Mc Cune v. Norwich City Gas Co., 30 Conn., 521, in support of his claim. But that case furnishes no aid to the defendant. The plaintiff there sought to recover damages of the defendants for discontinuing their supply of gas to the plaintiff. The declara [390] tion set forth that it was the duty of the defendants to continue to supply the plaintiff with gas, but no facts were stated going to show the existence of any duty or obligation on the part of the defendants to continue the supply, and the court held that, so far as the declaration showed to the contrary, the defendants had a right to discontinue the supply of gas at their pleasure, and that in such case the allegation that the act of shutting off the gas was done willfully and maliciously was of no avail to the plaintiff. Here the claim is that the injury is too remote ; that the plaintiff is only affected through his contract liability with the town. But it is easy to see that if the defendant intended to injure the plaintiff, as the declaration alleges, hé knew that the plaintiff had made such a contract, and took advantage of its existence to injure him in the manner described. • He made use of the contract as an instrument to accomplish his purpose. As well may it be claimed that where one beats another with a bludgeon, the injury is too remote because the damage was done by the bludgeon. , We see no ground for the claim. The view we have taken of this question l’enders it unnecessary to consider whether the plaintiff has set forth a good cause of action without the allegation we have considered, and we therefore leave that question undecided. We advise the superior court that the declaration is sufficient. In this opinion the other judges concurred; except Hinman, O. J. who dissented.