Parker v. Burgess

The opinion of the court was delivered by ROSS, Ch. J. I. The first count of the declaration is a count in trespass. It is entitled “a plea of the case.” This defect is not reached by a demurrer. 1 Chit. Pl. pp. 254, 283, 663. It may be the ground of a motion to set aside the declaration for irregularity. [446] II. The defendants contend that the clause in this count, “ by means of the premises, she the said plaintiff then and there dislocated one shoulder” is .demurrable, as charging an injury-done by the plaintiff, and not by the defendants, and for vagueness, and indefiniteness, and meaninglessness, without the aid of an inference not expressed. It is true the allegations in a plea are to be taken most strongly against the pleader. Yet they are to be taken as a whole and fairly. The contention in respect to by whom the injury was occasioned, would be well taken, if it had not omitted the qualifying phrase “ by means of the premises.” Premises are what has already been stated and- set forth in the count. Looking back .to the premises, it is manifest that she dislocated one shoulder through the defendants’ wrongfully driving their sleigh against the sleigh of the plaintiff, and thereby throwing her, with great force and violence upon the ice and ground. The whole clause fairly charges the dislocation upon the fault of the defendants. When the pleader says “ by means of the premises,” or fault of the defendants already set forth, “ she dislocated one shoulder,” he gives the defendants fairly to understand that he means one of the plaintiff’s shoulders. It is altogether too fanciful and speculative to claim the pleader may mean the shoulder of her horse, or the shoulder of her sleigh. III. The demurrants farther contend that the clause “ and was also thereby forced and obliged to pay, lay out and expend divers sums of money, to wit: the sum of one hundred dollars in and about endeavoring to be cured of the sickness, soreness, lameness, disorder and injuries aforesaid, occasioned as aforesaid,” is insufficient, because it lacks an allegation of time, which is necessary in every traversable allegation. But the conjunction “ and,” connecting this sentence closely to the next preceding sentence, in which there is a proper allegation of time and place, brings that allegation into this clause, as a part of it. Royce v. Maloney, 58 Vt. 437. He further contends, that there [447] is no allegation that the plaintiff did pay out and expend the sum named. We think the allegation, that she was “forced cmd obliged to pay, lay out and expend'1'’ etc., is equivalent to alleging that she did pay, lay out and expend. It was the legal duty of the plaintiff carefully to heal and cure the injuries wrongfully inflicted upon her by the defendants. The damages set forth in this clause of the count are the common and ordinary consequences of the injury complained of, recoverable without being specially alleged. Hutchinson v. Granger, 13 Vt. 386. A good cause of action for the recovery of these damages would be contained in this count of the declaration, if this clause were treated as surplusage. Wholly immaterial allegations may be ordered stricken out, but are not demurrable. A demurrer properly reaches the substance only, or what is essential to the action. 2 Chit. Pl. 661. These are all the defects in the first count now relied upon under the special demurrer. IY. The second count is denominated a count in case for the same cause of action. Trespass and case may be joined. This is authorized by statute R. L. 912. This count declares that the plaintiff on the occasion owned a sleigh and horse, and was riding in the sleigh drawn by the horse, on a public highway ; that the defendant, Merritt E., owned also a horse and sleigh which were being driven along the same highway by the defendant, John Burgess, a son and servant, acting in the business, employment and under the direction of defendant, Merritt E., and that the defendants, not minding their duty, so negligently, and unskillfully managed and behaved themselves, so ignorantly, carelessly and negligently drove, managed, guided and governed, the sleigh of Merritt E., that, for want of good and sufficient care and management, and by furious driving, it struck against the sleigh of the plaintiff and caused the damages complained of. This is the substance of what is set forth in the second count. We think this is a count in case for the negligent [448] act of the defendant John, for whose act the defendant Merritt E. by relation, — whether he was in the sleigh with his son at the time of the accident or not, — was also responsible. If the accident and injury were the indirect or consequential result of the negligent act of defendant John, then the action may be maintained against both defendants, but if the direct and immediate result of his negligent act, the action in this form may be maintainable against Merritt E. only. That will depend upon the proof. The count declares for the indirect and consequential result of the negligent act of both. It does not declare for the direct and immediate result of the negligent act of John, and also for the indirect and consequential act of Merritt E. It is not double as contended by demurrants. Taken as a whole the count is certain to a common intent. "We think the language used, taken in its natural sense, imports the meaning we have indicated, and any other meaning must be made out by argument or inference. When this is the case, the natural sense shall prevail and the count, in this kind of action, will' be held sufficient. 1 Ohitty Pl. s. 233. The demurants’ other objections to this count are, either the same, objections already considered put in another form of phraseology, or such as have been considered, in regard to the first count. Judgment affirmed and cause remanded.