Hendrickson v. Pennsylvania Railroad

The opinion of the court was delivered by Beasley, Chief Justice. The ground laid in the argument to sustain this demurrer was, that the plaintiffs claim damages, in part, for causes which in law give no right to damages. The action is by husband and wife, and the excess in their demand for compensation is said to consist in the claim they each make for the anxiety suffered in consequence of the bodily injuries' sustained by the other. It is not denied [467] that a portion of the demand of damages, with respect to other matters, is well laid; but it is asserted that, in the particular mentioned, the law will afford no indemnification. The contention was, that the plaintiffs have overstated, in point of law, their case. But, in my opinion, the position thus taken is not sustainable. -This is a general demurrer, and its legal force is to admit all the plaintiffs’ case that is well pleaded. Co. IAtt. 72, a. And the decisions are quite clear to the effect that, where the plaintiff’s claim is made up of separable demands, some of which are good and some bad, such a declaration will prevail against a general demurrer. Powdick v. Lyon, 11 East 565, was a case of that character, the plaintiff demanding two several sums of money, one of which, on the face of his pleading, he failed to show was legally.due to him ; and on a demurrer to the whole declaration, Lord Ellenborough said that “ the demurrer was too large : it went to the whole of the plaintiff’s demand in the declaration, when it was clear that he was entitled to recover part of it; ” and Bayley, Justice, stated the general rule thus: “If the sum demanded be divisible on the record, as it appears to be, and there be no objection to one part of it, the demurrer, which goes to the whole, is bad.” The same principle is applied where some of the counts in a declaration are good and some bad; or in an action of covenant, where there are several breaches assigned, some of such assignments being well and others ill, and the demurrer is general; in such cases the plaintiff will prevail.” Pinkney v. Inhabitants of East Hundred, 2 Saund. 378; Benbridge v. Day, 1 Salk. 218 ; Duppa v. Mayo, 1 Saund. 286; Martin et al. v. Williams, 13 Johns. 264; Adams v. Willoughby, 6 Johns. 65; Whitney v. Crosby, 3 Caines 89. The case of Condit v. Neighbor, 1 Green 83, which was relied upon on the- argument, was settled upon the effect of a special demurrer, and consequently is regarded as not being in point. It is not amiss to remark that the declaration in this case is no further sanctioned than that it is declared to be, taken [468] as a whole, sufficient in substance to prevail over a general demurrer. The demurrer cannot be supported.