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Country of Origin:  United States Court Name:  Supreme Court of Errors of Connecticut Primary Citation:  53 Conn. 212, 1 A. 819 (1885) Date of Decision:  Wednesday, December 16, 1885 Judge Name:  CARPENTER, J. Jurisdiction Level:  Connecticut Alternate Citation:  53 Conn. 212, 1 A. 819 Judges:  J. CARPENTER Attorneys:  Doolittle & Bennett, for plaintiff. A. N. Wheeler, for defendant. Docket Num:  n/a

This Connecticut decision in 1885 held consequential losses as a result of the harm to an animal (a horse) to be a proper element of damages in addition to the fair market value of the animal. Specifically, the court applied fair market value, but disallowed consequential damages for lost profits where plaintiff failed to show an effort to mitigate such damages.

The statutory notice is a condition precedent to the plaintiff's right to maintain his action. Inquiry as to its sufficiency is proper where the right to maintain the action is questioned. Here no such question arose, since the defendants by demurring admitted the plaintiff's standing in court. Crane v. Eastern Transp. Line, 48 Conn. 361. The plaintiff's right to maintain his action being admitted, there remains nothing for the plaintiff to prove except the extent of the wrong done to him by the defendants. Evidenee [sic] is admissible on the part of the defendants to belittle the plaintiff's injury, and to prove the injury was not occasioned by the fault of the defendants; the burden of proof being upon him. Daniels v. Saybrook, 34 Conn. 377; Lamphear v. Buckingham, 33 Conn. 250; Crane v. Eastern Transp. Line, 48 Conn. 361. While it has been decided that the defendants cannot be deprived of the privilege of introducing evidence in reduction of damages simply because that evidence shows the plaintiff has no cause of action, yet the evidence thus introduced must be such as to throw light upon the extent of the injury done by the defendants. Evidence as to the sufficiency of the notice is not such. It does not belittle the injury. It does not tend to show that the injury was not occasioned by the fault of the defendants. It is notice of an injury which of necessity has happened when the notice is given; and giving it is but a step in a proceeding to fix the liability for such injury upon the town. Evidence in regard to it by either party would be immaterial and irrelevant. The court decided correctly that it was not necessary, upon the hearing in damages, for the plaintiff to prove that he had given the written notice required by the statute, to enable him to recover substantial damages.

*820 The notice given was sufficient. (a) In determining its sufficiency in regard to place it must be considered in connection with the circumstances. The notice shows that the horse fell through a defective sluice situated between two points, upon the highway. The facts show one, and only one, defective sluice within those points, and the defect in it, a hole so apparent that the attention of a person who had received the notice must have been called to it at once. The notice was given within four days of the accident. Tuttle v. Winchester, 50 Conn. 497. The following cases are exactly in point: McCabe v. Cambridge, 134 Mass. 484; Lowe v. Clinton, 133 Mass. 526; Ranney v. Sheffield, 49 Vt. 191. (b) The notice sufficiently specified the nature of the injury. Blackington v. Rockland, 66 Me. 332; Bradbury v. Benton, 69 Me. 194; Pratt v. Sherburne, 53 Vt. 370; Weeks v. Lyndon, 54 Vt. 647; Tuttle v. Winchester, 50 Conn. 497.

The court ruled correctly that the plaintiff could recover damages in this action for the loss of the use of the horse. The action is brought to recover just damages for injury to the particular species of property of which the statute speaks. What shall be the measure of these damages? Certainly in this state the same rule applies as in actions for negligence at common law. Beecher v. Derby Bridge Co., 24 Conn. 491; Seger v. Barkhamsted, 22 Conn. 290. Direct consequences must necessarily be considered. There has never been doubt that, with proper allegations in the complaint, special damages for loss of earnings may be recovered in an action on this statute. Taylor v. Monroe, 43 Conn. 36; Tomlinson v. Derby, Id. 562. Even such remote consequential damages as the expenses of the suit may be recovered in certain cases. Beecher v. Derby Bridge Co., 24 Conn. 491; Wilson v. Granby, 47 Conn. 74. The loss of the use is always considered at common law. Gillette v. Western R. Corp., 8 Allen, 560. The exact question here made has been decided in Massachusetts and Vermont on actions brought under the statutes of those states. Johnson v. Holyoke, 105 Mass. 80; Wheeler v. Townshend, 42 Vt. 15.

Interest was properly allowed as part of the whole sum awarded the plaintiff. After the damages were sustained there was a time during which the defendants delayed satisfaction for them. The date when they ought to have paid, and did not, is found to be December 1, 1883. The plaintiff must be allowed interest during the delay, for in no other way can he receive complete indemnity. Mailler v. Express Line, 61 N. Y. 312; Whitehall Transp. Co. v. New Jersey S. B. Co., 51 N. Y. 369; Duryee v. Mayor, 96 N. Y. 477, 499; Lindsey v. Danville, 46 Vt. 144.

This action is brought upon the statutes of this state relating to highways, to recover damages for injuries to the horse, carriage, and harness of the plaintiff, alleged to have been received upon a defective highway that the defendant was bound to maintain. The case was heard in damages, after demurrer overruled, and judgment rendered for the plaintiff *821 to recover $171.59, as detailed in the Record, (page 5,) and the defendant appeals to this court.

The court erred in rendering judgment for more than nominal damages, as the notice given to the defendant (Record, p. 6) does not meet the statutory requirement in that it does not sufficiently specify the nature of the injury, and the place of its occurrence. The plaintiff claimed, and the court ruled, that this objection, if valid, could not be interposed upon a hearing in damages after demurrer overruled. This claim is based upon the assumption that the giving of the notice required by statute is a part of the cause of action, and that by demurring to the complaint and omitting to deny the allegation that such notice was given, the defendant thereby admits that the notice given was sufficient. In answer to this claim we say (1) that if it were possible that demurring to the complaint would have this effect, it could only occur when the notice itself is set forth in the complaint. The allegation that the notice required by statute was given, is a legal conclusion and not a fact, and is therefore not a proper or material allegation of the complaint. Chapman v. Nobleboro, 76 Me. 427; Dickie v. Boston & A. R. Co., 131 Mass. 516; Shea v. Lowell, 132 Mass. 187. (2) The giving of the notice required by the statute is a provision pertaining to the remedy, and is not a part of the cause of action. The right of action against towns for injuries to person or property arising from defective highways within their limits, and which they are bound to maintain, was given by an ancient statute, and remained unchanged until 1874, (see Pub. Acts 1874, p. 196,) when an amendment was passed requiring notice to be given of the injury, and of the time and place of its occurrence, and which was an addition to the then existing law. This law was revised in 1875, (Gen. St. 1875, p. 232,) and amended in 1883, (Pub. Acts 1883, p. 283,) when the nature and cause of the injury were required to be specified. None of this legislation was intended to affect, or did affect, the plaintiff's cause of action arising under the old law; no new element was introduced affecting the plaintiff's cause of action or the defendant's liability. Both remain the same as under the old law. The provision requiring notice was intended to apprise towns of defects in their highways, and of the occurrence of injuries for which they were made liable under the existing statute, and to give them an opportunity to investigate, in the day and time of it, whether the injuries complained of had in fact occurred, and to ascertain whether the highway was in fact defective, and to collect and preserve the evidence of these facts before the same was lost or became inaccessible. The language of the statute plainly indicates that this provision as to notice affects the remedy only; it is peculiarly appropriate for that purpose. "No action for such injury shall be maintained unless," etc. It is not a condition precedent to be pleaded, but a limitation imposed upon the right of the plaintiff to maintain an action already given by other statutes, or by other and independent clauses of the same statute, if he fails to prove, upon the trial of the case, that he gave the notice required by law. If the notice offered in evidence is insufficient, it is no notice, and the action cannot be maintained; the *822 suit must be dismissed. This limitation is analogous to that of the statute of limitations and of the statute of frauds. They are all statutes regulating the maintaining of actions, and do not create or limit the cause of action. The Vermont statute relating to highways is in this particular identical with ours, and is construed in accordance with this view. Kent v. Lincoln, 32 Vt. 591; Doyan v. School-district, 35 Vt. 520; Matthie v. Barton, 40 Vt. 286; Bartlett v. Cabot, 54 Vt. 242; Low v. Windham, 75 Me. 113; Chapman v. Nobleboro, 76 Me. 427; Fanton v. Middlebrook, 50 Conn. 44. (3) But assuming that it is a necessary allegation of the complaint, the defendant, by demurring in an action of tort for unliquidated damages, where they are not necessarily entire and indivisible, admits a cause of action for the sole purpose of recovering nominal damages. If the plaintiff demands substantial damages, his proof must follow the allegations of the complaint as closely as if the case stood upon the general issue; and the defendant has the right to disprove those allegations, or prove other facts that show the cause of action to be unfounded. If the plaintiff fail in his proof, or the defendant disprove the cause of action, nominal damages only are recoverable. If in this case the allegation of notice is material, the plaintiff must prove it by legal and sufficient evidence, and if the notice offered in evidence is insufficient, he certainly fails so to do. An insufficient notice is no notice. And were it not for the rule of law, and practice giving him nominal damages upon a hearing in damages after demurrer overruled or upon a default, the defendant would recover judgment. Havens v. Hartford & N. H. R. Co., 28 Conn. 69; Daily v. New York & N. H. R. Co., 32 Conn. 356; Lamphear v. Buckingham, 33 Conn. 237; Carey v. Day, 36 Conn. 152; Batchelder v. Bartholomew, 44 Conn. 494; Shepard v. New Haven & N. R. Co., 45 Conn. 58; Crane v. Eastern Transp. Line, 48 Conn. 361; Matthie v. Barton, 40 Vt. 286; Low v. Windham, 75 Me. 113. (4) The notice (Record, p. 6) is insufficient, in not specifying the nature of the injuries, and the place of their occurrence. The provision requiring the nature of the injury to be specified, was first introduced into our law in 1883, (Pub. Acts 1883, p. 283,) and the object evidently was to convey still more precise and definite information to towns and others liable for these injuries than was provided for under the former statute. A new element must now be incorporated in the notice. A reasonably certain description of the injury must be given. To say that he is injured in person or property by means of a defective highway does not describe the character of the injury, or give any information whatever of its nature. He can claim any and every conceivable injury on the trial of the case under such a notice. This is one of the evils that this provision of the statute was intended to prevent. By the "nature" of the injury is meant the "kind," "sort," "character," "species," of injury; "those qualities or attributes which make it what it is, as distinct from others." The Maine statute requires the nature of the injury to be stated, and has been construed. Low v. Windham, 75 Me. 113; Perry v. Putney, 52 Vt. 533; Bartlett v. Cabot, 54 Vt. 242; Tuttle v. Winchester, 50 Conn. 497. The notice is insufficient as to place. The place is on "the highway in said town, *823 at a point between the dwelling-house of Elliot B. Bradley and the John Honahon place, so called." The finding shows that these places are 125 rods apart, and that there are three sluiceways within that distance, and within 25 rods of each other. The particular sluiceway is not specified. And if there is more than one point upon the highway which answers the description of the alleged defect and cause of the injury within the distance named, the notice should specify at which one of those points the injury occurred, to be of any practical assistance to the town officials. Cronin v. Boston, 135 Mass. 110; Post v. Foxborough, 131 Mass. 202; Larkin v. Boston, 128 Mass. 521; Reed v. Calais, 48 Vt. 7; Purrington v. Warren, 49 Vt. 19; Butts v. Stowe, 53 Vt. 600; Holcomb v. Danby, 51 Vt. 428; Shaw v. Waterbury, 46 Conn. 266.

Damages for the loss of use of the horse while injured cannot be recovered in this action, as they are indirect and consequential, and are not authorized by the statute. The liability of towns for injuries to person and property arising from defective highways, as before stated, is purely statutory. This is too well settled to need the citation of authorities. And the statute that creates the liability, and points out the remedy, qualifies, limits, and controls the extent of that liability. Our original statute (Rev. St. 1821, p. 266) was as follows: "Sec. 4. If any person shall lose a limb, break a bone, or receive any bruise or bodily injury through or by means of any such defective bridge or road, in manner aforesaid, the town, person, persons, or corporation which ought to keep in repair such bridge or road, shall pay to the person so hurt or wounded just damages. Sec. 5. If any horse or other beast, or cart, or carriage, or other property, shall receive any injury or damages through or by means of any defective road or bridge, in manner aforesaid, the town, person, persons, or corporation which ought to keep such road or bridge in repair, shall pay the owner of such beast or property just damages." Thus the law remained until the Revision of 1875, when the two sections were incorporated into one, and the language of the present statute adopted. This is but a revision of the former law, not the enactment of a new one. No change of the law was intended; the revisors are presumed not to change it, but to collect, codify, and condense it. Burr v. Plymouth, 48 Conn. 460; Allen v. New Haven & N. R. Co., 50 Conn. 216; Harral v. Leverty, Id. 46; McDonald v. Hovey, 110 U. S. 619; S. C. 4 Sup. Ct. Rep. 142; Harwood v. Lowell, 4 Cush. 310. The question, what damages towns are liable for, arising from defective highways, has been decided by this court, and the precise language of the present statute construed. Chidsey v. Canton, 17 Conn. 475; Wilson v. Granby, 47 Conn. 59; Harwood v. Lowell, 4 Cush. 310; Reed v. Belfast, 20 Me. 246; State v. Hewett, 31 Me. 400; Weeks v. Shirley, 33 Me. 271; McLaughlin v. Bangor, 58 Me. 398.

The allowance of interest upon the amount of the judgment from December 1, 1883, to January 5, 1885, the date of judgment, is improper in this action. The statute does not authorize it. It is not "damages arising from injury to" "person or property," and those only are recoverable. Sargent v. Hampden, 38 Me. 581.



Action for injury to property by reason of a defective highway. Hearing in damages after demurrer overruled.

The defendant objected to the admission in evidence of the notice to the selectmen required by statute, (Sess. Laws 1883, p. 283,) on the ground that it did not sufficiently describe the nature of the injury, and the place of its occurrence. The court overruled the objection. Under the statute as it originally passed in 1874, the nature of the injury need not be stated in the notice, but it is required by the act as amended in 1883. We think the nature of the injury is sufficiently described. The injury was to a horse, wagon, and harness, and is thus described: "That said horse was injured in the left leg and knee-joint, and otherwise bruised and injured; that said carriage was injured by breaking the right shaft, and being wrenched and sprung; that said harness was much broken and injured." This notice is required of plain men, and, in a majority of instances, of men of common or limited education, and must be given within 60 days after the injury. It is absurd to suppose that the legislature intended that it should be given in technical terms, or that it should be accurately described in detail. A general description which will reasonably apprise the selectmen of the general character of the injury is all that is required. That was given in this case.

The place of its occurrence is thus described: "Through a defective sluice across the highway in said town, at a point between the dwelling house of Elliott B. Bradley and the John Honahon place, so called." Between these points there are three sluiceways, and within 25 rods. Only one was defective, and that was the middle one. The defect was a hole "in the traveled track, about three feet deep and six inches wide, and extending across the sluiceway very nearly the width of a carriage." The defect was an obvious one. We think it is very clear that the selectmen had such notice of the place as that they could not have been misled, and could not have mistaken its identity. We think the evidence was properly admitted.

Obviously the plaintiff had no occasion to prove the notice, for it was alleged in the complaint and admitted by the demurrer. Whether the defendant could have shown want of notice for the purpose of affecting the question of damages, is a question we need not consider.

The claim that the loss of the use of the horse is too remote, and that damages therefor cannot be recovered in this action, cannot be sustained. The loss was the direct and natural consequence of the injury. That it was a proper element of damage is too clear for argument.

It is not usual in this class of cases to allow interest as such, or to allow it as damages for the detention of money due. It may be proper in some cases to take into consideration the lapse of time in assessing damages. Whether this is such a case is unimportant, because the amount thus allowed, $10.59, is too insignificant to justify us in reversing the judgment and granting a new trial.

(In this opinion the other judges concurred.)

Conn. 1885.


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