Budd v. Meriden Electric Railroad , 69 Conn. 272 ( 1897 )

Andrews, C. J.

There was no error in sustaining the demurrer to the plea in abatement. The service of the complaint by leaving a copy with a resident director was a good service, unless such circumstances existed as made it a defective one. The defendant, in order to have that service set aside, was in duty bound to point out in its plea in abatement the existence of those circumstances, by direct and positive averment. The defendant’s plea did not do this. It may be true that the ancient rigor of pleading in abatement is not now insisted on. Courts do not now, in considering such a plea, “ refuse to comprehend the ordinary import of language.” Draper v. Moriarty, 45 Conn. 476, 479. But pleas in abatement are not favored. They must be certain, positive, and direct. They cannot be aided by intendment or inference.

In 1848 the legislature enacted (Public Acts of 1848, Chap. 5) that “ no action to recover damages for injury to the person, . . . shall abate by reason of his death, but his executor or administrator may enter and prosecute the same, in the same manner as is now by law provided in regard to other actions. Sec. 2. Actions for injury to the person, whether the same do or do not result in death, . .• . shall survive to his executor or administrator, provided the cause of action shall not have arisen more than one year before the death of the deceased.” In 1853 it was enacted (Public Acts of 1853, Chap. 74, § 8) “ that if the life of any person, being a passenger, or crossing upon a public highway in the exercise of reasonable care, shall be lost by the negligence or carelessness of any railroad company in this State, or by the unfitness, or negligence, or carelessness of their servants or agents, such railroad company shall be liable to pay damages, not exceeding five thousand dollars nor less than one thousand dollars, to the use of the executor or administrator of the deceased person, to he recovered by such executors or administrators in an action on the case upon this statute, for the benefit of the husband or widow and heirs of the deceased person, one moiety thereof to go to the husband or widow, and the other to the children of the deceased, but, if there shall be no children, the whole to the husband or widow, and if no husband or widow, to the heirs according to the law regulating the distribution of intestate personal estate.”

These two statutes are now brought together in § 1008 of the General Statutes, on which statute this suit was brought. The main difference between the section last named, and the statute of 1853, is that the law as it now exists is not limited to injuries inflicted by a railroad company, but includes all injuries resulting in death.

From these statutes it is evident that three things have been effected: first, the cause of action which existed in the deceased person is kept alive; the rule of law that all personal actions died with the person, has been set aside as to these cases. Second, to limit the extent of the damages which may be recovered for such an injury; and third, to direct the distribution of the sum recovered. The sum recovered is ordered to be paid to certain relatives in specified proportions, and if there are no such relatives, then to the heirs of the deceased as intestate estate, excluding creditors. The statute, then, is as well a statute of distributions. Murphy v. N. Y. & N. H. R. R., 29 Conn. 496; Goodsell v. H. & N. H. R. R., 33 id. 51; Waldo v. Goodsell, ibid. 432; Lamphear v. Buckingham, ibid. 237; Hartford & N. H. R. R. v. Andrews, 36 id. 213.

As these statutes give the right to sue, to the executor or administrator, and direct in what way the sum recovered is to be distributed, it is obvious that a suit upon the statute may be brought by the executor or administrator, without naming the heirs, or even averring that there are any. The law ordinarily will presume that a deceased person has heirs. Pitkin v. N. Y. & N. E. R. R., 64 Conn. 482, 487; Warner v. Western N. C. R. R., 94 N. Car. 250, 258; Balto. & O. R. R. v. Wightman's Adm'r, 29 Gratt. 431, 441; Madden v. C. & O. R. R., 28 W. Va. 610, 612.

The plaintiff was not limited in his proof, to those specifications of negligence mentioned in his notice of the injury given to the defendant, pursuant to the statute. The notice is not a pleading. The object of such a notice is to put the officers of the corporation charged with the duty of investigating the claim made upon it, in possession of such facts as will enable them to perform that duty understandingly. Shaw v. Waterbury, 46 Conn. 263; Biesiegel v. Seymour, 58 id. 43, 52; and as to the “ nature ” of the injury, the notice is sufficient if it gives a general description which will reasonably apprise the defendant of its general character. Brown v. Southbury, 53 Conn. 212; Lilly v. Woodstock, 59 id. 219; Gardner v. New London, 63 id. 267, 272. The sufficiency of the notice is to be tested with reference to the purpose for which it is required. If sufficient for that purpose it is a good notice.

The fifth, ninth, sixteenth and seventeenth reasons of appeal present no questions of law, only questions of fact.

The sixth, seventh and eighth reasons are predicated on the city ordinance, which appears in the statement. A child only twenty-one months old cannot be affected by any such ordinance; and it is certain that the duty of the motorman to use care towards such a child, alone in the streets, is not and cannot be lessened or modified by that ordinance.

As it is found specifically that the parents of the said Mizee were not negligent, the tenth, eleventh and twelfth reasons present no question. There was no negligence to be imputed to the deceased, and there was no negligence from which her parents could in any way derive advantage.

The defendant offered as a witness a Mrs. Berry, and claimed she would testify that in a conversation she had with the mother of the said Mizee, shortly after the accident which resulted in the death of Mizee, she, the mother, stated that she did not blame the motorman. On objection this testimony was ruled out, and, we think, properly. Whether the mother blamed the motorman, or did not blame him, was an irrelevant fact. Her belief that the motorman was blameworthy, would not in any way tend to make the defendant liable in this action ; and a contrary belief would not tend in any degree to show that the defendant was not liable.

The defendant called witnesses and claimed to have proved by their testimony that the motorman of the car which ran over the deceased was a careful motorman and a careful man generally. This testimony was objected to by the plaintiff, but admitted by the court. In reply to this testimony the plaintiff called a witness who stated that she had seen the motorman looking backwards when the car was in motion. To this statement the defendant objected, but the court admitted it. It seems to us that the testimony offered by the defendant was not admissible; Morris v. East Haven, 41 Conn. 252; Bassett v. Shares, 63 id. 39, 46; so that the evidence offered by the plaintiff did no harm. If the evidence offered by the defendant was admissible, it was certainly open to the plaintiff to contradict it.

The testimony of the witness Johnson falls within the rule here given. It was offered to offset and contradict the testimony on the part of the defendant.

There is no error.

In this opinion the other judges concurred.