Devino v. Central Vermont R. R.

Tlie opinion of the court was delivered by POWERS, J. This is a demurrer to the declaration which is in three counts. The plaintiff concedes that the third count is bad. The second count goes upon the ground of the negligence of the defendant to discharge its duty to safely transport the plaintiff and his wife from White River Junction to Winooski. But in this count the facts which give rise to the duty, and the omission of which create the negligence of the defendant, are not set forth, and the pleader merely states a conclusion of law. Thisis a fatal defect. Kennedy v. Morgan, 57 Vt. 46. The first count is specially demurred to on the ground of duplicity. Duplicity is defined to be the joinder of different grounds of action to enforce a single right of recovery. Gould PL Chap. 4, s. 99. 'Here the ground or cause of action, is the negligence of the defendant. This negligence was the common source of disastrous conse quences both to the plaintiff and to his wife, as much as if a person strike a blow which hits two persons at the same time. There is then only one ground of action stated' in the count. Does it seek to enforce anything but a “ single right of recovery ? ” In Guy v. Livesey, Cro. Jac. 501, there was a count in -trespass for an assault and battery upon the plaintiff mid upon his wii&yer quod consortium uxoris amisit. After verdict a motion in arrest was filed based upon the ground that the count was double. But all the court held that the action was well brought, for as to the battery of the wife the plaintiff sought no recovery but only for the loss which he suffered by reason of that battery upon the wife. If a battery be inflicted upon the wife the damages to the husband springing from the loss of the wife’s society and 'services, are the husband’s exclusive personal damages. In a count merely to recover such damages all the allegations showing the [103] battery to the wife should be set forth as they would be, in a count in favor of the husband and wife to recover for the damages to the wife for the battery. A count seeking a recovery for the husband’s damages for loss of the wife’s services consequent upon a battery of the wife, can be joined in a declaration with a count for damages resulting from a battery upon the husband alone. 1 Chit. Pl. 73; 1 Salk. 119 ; Selwyn N. P. 286. If in a single count nothing but damages personal to the husband and arising at the same time and from the same cause, are sought, how can they be treated as anything but the result of a “ single right of recovery.” Put at all events the objection to the first count amounts to this, that the plaintiff in this count asks for more damages than he is entitled to. If he cannot recover for the consequential damages he may for those done by the battery upon himself. The count is not demurrable because the plaintiff claims too many items of damage. 1 Chit. Pl. 349; Bayles v. Kan. Pac. R. R. Co., 13 Col. 181 (5 L. R. A. 480); Bayles v. Glenn, 72 Ind. 5; Moritz v. Splitt, 55 Wis. 441. The judgment is reversed. The demurrer is sustained as to the %d and 3d 'counts and overruled as to the. 1st count cmd that count is adjudged sufficient. The case is remanded with leme to replead, to both parties.