Corey v. Bath , 35 N.H. 530 ( 1857 )

Perley, C. J.

The Eevised Statutes enact under a penalty that “ No person shall do any work, labor, or business of his secular calling, to the disturbance of others, works of necessity and mercy excepted, on the first day of the week, commonly called the Lord’s day; nor shall any person use any game, play, or recreation on that day, or any part thereof.” A more extended operation has been given to that branch of our statute which prohibits work, labor, or business of the secular calling on Sunday, than tbe English statute on that subject has received. Frost v. Hull, 4 N. H. 153; Allen v. Lemming, 14 N. H. 188.

But our cases are far from going to the length of including a visit which a son makes to his parents on Sunday, under the head of work, labor, or business of his secular calling, and it cannot be held that such a visit is within that provision. Does trav-elling to make such a visit fall under the other branch of the statute, which forbids using any game, play, or recreation on that day ?. It is clearly not a game or play, and if prohibited by the statute must be classed under the head of an unlawful “ recreation.”

The word recreation is thus defined by Webster: “ 1. Refreshments of the strength and spirits, after toil; amusement, diversion. 2. Eelief from toil or pain; amusement, in sorrow or distress.” The word in this, its popular sense, is of very comprehensive signification, and manifestly quite too broad and loose for the definition of a legal offence. Within this definition, a man who should derive refreshment to his strength and spirits, exhausted by the labors of the week, from the religious rest of the Lord’s day, would be using a criminal recreation, and liable to the penalty inflicted by the statute; and the word has no legal signification different from the popular meaning. It is not one of the terms of the law. It is plain, however, that in the construction of this statute some limitation must be put on the common signification of the word. It would be quite extravagant to hold that the legislature intended to punish as a crime every kind of recreation embraced within the wide range of that term in its common and usual sense; and I think that the recreations prohibited by the statute are those which are of a like character with “ games and plays,” which are specifically forbidden in the same clause. “ Nor shall any person use any game, play, of recreation ;” that is to say, or any other like recreation.. Where several particulars are enumerated in a statute, and a general term is added which includes those particulars, and has also a more extensive meaning, the general term is often restricted in con.struction to cases of a like nature, with the particulars before enumerated. Rex v. Whitnash, 7 B. and C. 596; Torrance v. M'Dougal, 12 Geo. 536; Foster v. Blount, 18 Ala. 687; Phillips v. Saunders, 15 Geo. 518; United States v. Bevans, 3 Wheaton 390; Com. Dig., Parliament, (R, 20.)

The provincial statute of 12 Will. 3, anno 1700, forbade any game, sport, play or recreation. The act of 1799 omitted the word “ sport,” certainly without intending to extend or change the meaning of the term recreation, which was retained; and the provision of the Eevised Statutes is adopted literally from the act of 1799. The term “ recreation” includes, in its general meaning, games, sports and plays. If these words are not allowed to have such a restraining effect as has been mentioned on the general term, “ recreation,” they are wholly idle and unmeaning. If every kind of recreation is to be punished under the statute, why did it specify games, sports and plays, which belong to one kind and class of recreations. There are other recreations besides games and plays, that may be regarded as of a like character, such as a boxing match or a horse race. But travelling on Sunday, to visit a parent, is not recreation of such a character; it has no resemblance to a game or play.

The general terms used in a general law are frequently restrained by construction. Thus it is said in Bacon’s Ah., Statutes, (I, 9) : “ The rules of the common law will not suffer the general words of a statute to be restrained to the prejudice of him upon whom a penalty is to be inflicted; but there are a multitude of cases where such general words shall be restrained in his favor.”

There is another strong ground for holding that the word recreation, in the statute, was not intended to include travelling on Sunday. This provision against using any game, play or recreation on the Lord’s day, is reenacted from the statute of 1799, and on common principles must be understood to have the same meaning that it had in the former statute. Being adopted from the old statute, the former meaning and construction are adopted with it, unless there should be some particular reason for giving it a new and different operation. But the second section of the statute of 1799 is in the following terms: “No person shall, travel on the Lord’s day between sun rising and sun setting; unless from necessity, or to attend public worship, visit the sick, or do some office of charity, on a penalty of a sum not exceeding six dollars, nor less than one.” Travelling on Sunday was thus by that statute a distinct and separate offence, and the time for committing it limited to part of the natural day, whereas the prohibition of games, plays and recreations, extended to the whole twenty-four hours, from midnight to midnight. Shaw v. Dodge, 5 N. EE. 462.

Under that statute it is quite plain that travelling on Sunday could not be included under the head of a recreation, in the sense of that word, as it was used in the first section. It was a distinct offence, created by a separate provision in a different section, and a different time limited within which it might be committed. And not being a recreation in the meaning of the term, as used in the former statute, the argument is very strong that it is not within the meaning of the same term adopted from the former law on a general revision of the statutes.

The prohibition against travelling on Sunday is wholly omitted in the Revised Statutes; from which the inference is strong that the intention was to repeal and abolish that penalty, and not to change the law by transferring travelling on Sunday to the head of a recreation, when it was not in the old statute embraced under that term. It is said, in Beach v. Spofford, 31 Maine 34, that when a statute is revised, and a provision contained in it is omitted in the new statute, the inference to be drawn from such a course would be that a change in the law was intended. If by accident, it belongs to the legislature to supply it. And in Ellis v. Page, 1 Pick. 43, 45, the rule is stated to be “ that when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled.”

In this case we think the intention was to annul the provision against travelling on Sunday, by omitting it from the Revised Statutes, and not by such omission to give a new and extended meaning to another provision retained in the new statute. We are, therefore, of opinion that travelling on Sunday, in an orderly and decent manner, to visit a parent, is not to be regarded as a criminal recreation, within the meaning of the statute. Trav-elling on Sunday, in the prosecution of secular business, to the disturbance of others, would be within the other branch of the statute; but travelling, as the case finds the plaintiff did, would be no violation of law, however we might be disposed to regard it in a moral or religious point of view.

Even if the plaintiff’s travelling on Sunday were to be held a violation of law, as the illegality of his act could have in no way contributed to the accident, it would not protect the town, according to the decision in Norris v. Litchfield, ante 271. In that case it was held that though the plaintiff might have been at the time engaged in an unlawful act, it would not prevent him from recovering, if the illegality of the act in no way contributed to the accident. Unless this case can be distinguished from that, it is immaterial whether the plaintiff’s travelling on Sunday was illegal or not.

The defendants objected on trial to evidence of particular injuries to the plaintiff’s person, because none were specified in the declaration. The gist of the action in cases of this sort is the actual injury done to the person or property of the plaintiff. He cannot maintain his action merely on the ground of a neglect by the town to keep the road in proper repair, nor even on the fact that by reason of a defect in the road he was thrown from his carriage. The damage for which the plaintiff recovers under the statute must be individual and special, as distinguished from the general public inconvenience, and must be an actual and substantial, not a mere nominal and theoretical injury. Baxter v. The Turnpike Co., 22 Vt. 104; May v. Princeton, 11 Met. 444. Unless the plaintiff showed in evidence an actual injury to his person, on this declaration he would wholly fail in his action; and unless he could introduce evidence to prove the particulars of his injury, it is plain that he could never show any injury at all; for every injury must necessarily consist of its several parts and particulars. This position of the defendants amounted in substance to this: the plaintiff can introduce no evidence of any injury, because the declaration does not specify the particulars of his injury. But the injury to the plaintiff was the gist of his action, and unless the evidence were admitted the action could not be maintained. The ground of the objection is not that the evidence was a variance from the declaration; that the delaration stated one case, and the evidence went to prove another. If the 'objection had prevailed, no proof, no imaginable state of the evidence, would have enabled the plaintiff to proceed with his cause. The objection went substantially on the ground that there was no allegation under which the injury, that was the gist of the action, could be proved; or in other words, that the description of the injury in the declaration was legally insufficient to maintain the action.

This position, therefore, though in the form of an objection to the admissibility of evidence, is in substance an exception to the sufficiency of the declaration, and as such could not regularly be taken on trial. It might have been taken by demurrer, and was proper to be taken, as it was in fact by motion to arrest the judgment. When a defendant pleads the general issue to a declaration, and goes to trial, he admits, for the purposes of the trial, that the declaration is in law sufficient. But this objection does not go on the ground that the declaration was sufficient, and that the evidence offered was a variance from it. The substantial ground of it is that the declaration was insufficient; for if that evidence were held to be inadmissible, the cause of action laid in the declaration would in no way be proved, for the reason that no cause of action was sufficiently described and set forth in the declaration. The real position of the defendant on this point was this: the plaintiff cannot introduce evidence to prove his declaration, because it is insufficient in law to maintain his action. This, though presented in the shape of an objection to the admissibility of evidence, is manifestly in reality an exception to the legal sufficiency of the declaration, and could not regularly be taken on trial, but comes properly before the court on the motion in arrest of judgment, and must be treated as if it had been taken after verdict; May v. Princeton, 11 Met. 442; and the same is true, for the same reasons, of the objection to receiving evidence of particular defects in the road. If the plaintiff were not allowed to show the particulars of the defect, how could he show the defect at all ? Where should he begin ?

One ground of the motion in arrest of judgment is, that the declaration does not show the injury to have happened through the deficiency of a highway which the town were bound to keep in repair at the time of the accident. The declaration describes the road by the termini and intermediate monuments; alleges that it was a public highway in the town of Bath, which the town, on the 8th of July, 1855, were, and still are, bound to repair; that, on the said 8th day of July, the plaintiff wa3 travelling on said highway, and, while so travelling, was, by reason of the defect and want of repairs of said highway, thrown with great force and violence from his carriage. There is no averment in more direct terms, that at the time when the accident happened the road was a public highway in Bath which the town was bound to repair; and inasmuch as the plaintiff would not be required to prove on trial that the accident happened on the particular day laid in the declaration, the argument is that the declaration does not show the road to have been a public highway in Bath at the time of the accident.

It is true that the plaintiff would not be confined in evidence to the 8 th day of July; but the declaration alleges that the defendants were bound to repair on the 8th day of July, and that the accident happened on the said 8th day of July ; that is to say, on the same 8th day of July, and on the same day. This must be taken as a substantial averment that on the day when the accident happened, whether it were the 8th of July or any other day, the town were bound to repair. An averment by such reference .to a previous allegation is sufficient, even in an indictment. The King v. Perry, 6 T. R. 573. It may be said that the town might be liable at one time of the same day, and not at another ; but this would be much too refined for an objection that comes after verdict.

The road is designated by reference to the former description, as the said highway, and it is before described as a public highway in Bath, which the town, “ on the 8th day of July, 1855, were, and still are, bound to repair.” In Reed v. Chelmford, 16 Pick. 128, the averment was, “ the defendants are bound to maintain,” without any statement that the town were liable at any other time, and the declaration was held to be sufficient. Here it is alleged that the town were liable on the 8th of July, and still are, and that the accident happened on the said 8th day of July, which brings the present case far within the principle of Reed v. Chelmsford. In Tooms v. Etherington, 1 Levintz 120, the defendant pleaded the king’s pardon, in answer to a claim of forfeiture, and alleged that he was modo subditus, but did not aver that he was a subject when the pardon was passed, and held sufficient.

It might have been more precisely and pointedly averred that the road at the time when the accident happened was a highway in Bath, which the town was hound to repair; but the declaration is in this respect quite sufficient on this motion in arrest of judgment.

It is said that the declaration does not allege the defect which caused the injury to have been in that part of the highway which was in the town of Bath. But the whole highway de-; scribed is alleged to have been in Bath. The declaration alleges that there was a highway in Bath which reached in one direction to Lisbon. The road is alleged to be in Bath, and of course all its parts are in that town; and the plaintiff is stated to have received the injury while riding on the said highway, by reason of the insufficiency and want of repairs of said highway at a place in said highway, &c. The objection is taken on the record, and the record describes no road tending into any other town or place than Bath. And if the road were in fact a continuous highway, extending into Lisbon or any other town, the object of the description in this declaration, even if the objection had been taken as a variance on trial, would not seem to require that the connections and extensions of the road beyond the limits of the town should be set forth. The liability of the town would in no way depend on the fact whether the road extended into another place. The road is alleged to be a public highway in Bath, and the accident to have happened at a place on the said highway, by reason of the defect and insufficiency of said highway. The whole road being in Bath, that part of it where the accident is alleged to have happened must of course be in Bath. On examination of the declaration, this objection does not appear to be well founded in fact.

Another objection made to the declaration is, that it does not allege special damages. To maintain his action the plaintiff must show that he has sustained a special damage within the meaning of that term, as it is used in the statute. The gist of the action is the individual damage which the plaintiff has received ; and the injury itself, which is the cause of action, is not a special damage, in the sense of that term, as it is commonly used in the law of pleading and evidence. The injury to the plaintiff is the substantial fact charged as the foundation of the action ; and neither that, nor the natural and uniform effects of the injury, are special damages, in the legal and technical meaning of the term ; but special damages in that sense are such as are caused by some incidental fact, or by the peculiar situation and circumstances of the party. To take a case which has been sometimes put for an illustration: If the plaintiff should declare in trespass that the defendant broke and entered his close, and there discharged a gun, he could not, without stating more, prove on trial that he had there a decoy for ducks, and that the ducks were scared away by the discharge of the gun. The plaintiff’s damage from the disturbance of his decoy would not be the uniform consequence of discharging a gun on his land, and therefore the particular facts must be specifically stated, to show how the special damage was caused. So in declaring against a turnpike corporation for an injury to the plaintiff’s horse, caused by a defect in their road, the plaintiff could not, without a special statement, recover damages for being detained by the accident, so that he lost the next train of railroad cars, and was obliged to remain on expense at a tavern ; because the detention and consequent expense would not uniformly follow as the natural and uniform effects of such an injury, but would appear to be the necessary consequences, when the situation of the plaintiff was shown -which caused the special damage.

In cases like this, the injury which the plaintiff has received in his person or property is the fact charged as the foundation of the suit; and if that is sufficiently described, according to the general rules of pleading, the natural consequences of the injury, such as follow from it without the aid of any incidental fact or any peculiar circumstances, are not special damages, and may be recovered without specification.

Does this declaration sufficiently describe the injury or damage complained of? It is not' enough to allege that the road was out of repair, and the plaintiff was violently thrown from his carriage. All this would not amount to an actual, substantial injury, and a legal damage under the statute. The declaration must show further, that the plaintiff suffered a, substantial injury, and the general nature of it, whether it was to his person or his property; and if to Ms property, to what property. But it is not necessary that the declaration should give a detailed statement of the bodily injuries received, or set out the particulars of the damage done to any article of his property. If the injury was to his person, it is enough to say generally that he was greatly injured in his body, or that he suffered a great bodily injury; so, if the injury was to some piece of his property, say to his carriage, it would be sufficient to allege that the carriage was greatly, damaged, without describing the particular injuries to the different parts. In Reed v. Chelmsford, 16 Pick. 128, the averment was that the plaintiff was greatly injured in his body, without any more particular description of the injuries received ; and this agrees with the rule of pleading that prevails generally in similar cases. In an action on the case for running down and damaging the plaintiff’s barge, the injury may be stated generally. 2 Chitty’s PI. 283. So in a suit to recover damages for breach of a warranty on the sale of a horse. Whether the action is assumpsit or case, it is enough to allege generally that the horse was not sound, but unsound. 2 Chitty’s Pl. 101, 217; Warren v. Litchfield, 7 Greenl. 63. In cases where a general statement would have answered, if the plaintiff unnecessarily states particulars, he will be held to prove them as stated, unless the whole particular statement can be rejected, and leave the declaration sufficient. Bristow v. Wright, Douglas 664; and general pleading, where it is allowable, is for that reason in most cases thought to be the safer.

The declaration in one of these suits alleges that the plaintiff and his wife and child were thrown from his wagon with great force and violence, and he and the child greatly injured and damaged thereby. Is this to be taken, after verdict, as a sufficient averment that the injury which the plaintiff received was bodily, and to his person ? We think it is. The description of the accident and of the manner in which the injury happened would make it likely that a bodily injury would be received; and there is nothing stated from which it can be intended that any injury or damage of another character could befall the plaintiff. It is not alleged that the carriage was overset, or the horse thrown down, or any thing else of a kind that could cause damage or injury to his property. When it is said that he and the child were thrown with great force and violence from the wagon, and both greatly injured, the natural and ordinary meaning of the language would be that the injury to himself and the child was bodily. Any other conclusion would do violence to the plain and obvious meaning of the statement. It amounts in substance to an allegation that the plaintiff received a great bodily injury, and that is sufficient, without setting out the particulars of the injury.

In the action for injuries to the wife the case is stronger, for we do not perceive how she could receive in law any but personal and bodily injuries. A general statement that the road was defective and out of repair, is sufficient. Com. v. Pray, 13 Pick. 363; Reed v. Chelmsford, 16 Pick. 128; Rider v. Smith, 3 T. R. 766; Com. Dig., Case for Disturbance, (B.); 1 Saund. 348, (note 2); 1 Ld. Raymond 152; Anon., 8 Wentworth’s Pl. 543.

The declaration need not allege that the plaintiff was in the exercise of due care. May v. Princeton, 11 Met. 442; Smith v. The Eastern Railroad, ante, 356.

This would seem to dispose of all the points made by the de-, fendants; and in the view which th'e court take of them, it would not be necessary for the decision of the case to determine what is the effect of the confession filed in the Common Pleas. That question is, however, raised by the case, and, being of considerable practical importance, we have thought it might be well to consider it.

The statute under which the confession was made provides as follows: “ In any action the defendant may confess the plaintiff’s action, or any part thereof, and that the plaintiff is entitled to recover certain real estate, or a certain amount of damages, and plead to the residue of his claimand the statute makes certain other provisions in relation to costs.

When the defendant confesses a certain amount of damages, he admits conclusively every fact which the plaintiff would be obliged to prove in order to recover that sum. 1 Grreenl. Ev., sec. 205. In this case the defendant confessed the action and damages to the amount of ten dollars. There was but one count in the declaration, and to recover ten dollars on that count the plaintiff would be obliged to prove that there was a highway in Bath corresponding with that described, which the town was bound to repair; that it was out of repair, as stated in the declaration ; that the plaintiff suffered, by reason of the defect in the road, an injury such as he alleges, and that the town were liable in this action for that injury to the amount of ten dollars; and if the injury were entire and indivisible, when it was once identified, and it appeared that the evidence introduced on trial applied to the same injury that the plaintiff complained of and the defendant confessed, the only question it is clear would be one of damages. In case of a single injury to the plaintiff’s person, if the defendants were liable for part of the plaintiff’s damage, they must, of course, be liable for the whole.

In England, under a recent statute, a defendant may pay money into court in certain actions for torts, and the payment operates as an implied confession of some cause of action, corresponding with that declared on, to the amount of the money paid in. But as in such actions the statements of time and degree are not generally required to be proved as they are laid in the declaration, the implied admission has been held not to identify and ascertain, by mere reference to the record, any particular cause of action as that described in the declaration and admitted by the confession. Story v. Finnis, 3 Law and Equity Rep. 548; Schreger v. Carden, 10 Law and Equity Rep. 513; Cooke v. Hartle, 8 C. and P. 568. And where the damage alleged comprises several items, as in trover for different articles of personal property, or in an action for pound breach and rescuing cattle, it has been held that a general confession of damages, under the English statute, is not to be construed as an admission that the defendant is liable for all the articles, or for any particular article or articles enumerated.

But a confession under our statute must be held to admit some cause of action corresponding with that laid in the declaration, for which the plaintiff would be entitled to recover in the suit the sum confessed. And where, as in the present case, the cause of action is incapable of division, the admission is at least as strong as in a default, for a default operates only as an implied confession. Lloyd v. Walker, 9 C. & P. 771. The confession here admits that within the time covered in legal understanding by the declaration, the plaintiff suffered an injury, corresponding in legal character with that of which he complains, by defects in the road described, and that the town of Bath were liable in this suit for the injury. When the plaintiff introduces evidence of an injury which he has suffered, and the defendants deny that the evidence relates to the injury complained of and confessed, if the evidence is such as might apply to the injury complained of, the objection goes on the ground that the plaintiff has received two different injuries such as he sets forth in his declaration. If in this case the plaintiff offered evidence that at a certain time, before the commencement of the suit, he was travelling on the road described in the declaration, and was there thrown from his wagon and received a personal injury, and the defendants should deny that to be the injury which they confessed, the objection would go on the ground that, the plaintiff was at another time thrown from his wagon by a defect in the same road, and suffered another personal injury, for which he was entitled to recover in this action. And it would be a question of fact whether the injury to which the evidence related was that which was confessed, or another like injury, received by the plaintiff at some other time.

Until it appeared that the plaintiff had been twice thrown from his wagon on that road, and had received two injuries like that described in the declaration, it would be quite safe for the jury to infer as matter of fact that the injury to which the evidence related was the injury confessed. This would be analogous to the case where a general acknowledgment is received as evidence to take a particular debt out of the statute of limitations; Frost v. Bengough, 1 Bingham 266; Dubbs v. Humphrey, 10 Bingham 446; Whitney v. Bigelow, 4 Pick. 410; and when the fact was found that the injury confessed was that to which the evidence applied, the only remaining question would be as to the amount of damages. After default, where the cause of action is indivisible, the defendant, on an enquiry of damages, might make the same objection as to the effect of the default. If in this case the defendants had been defaulted, they might, when evidence of the amount of damage was offered, have denied with at least equal plausibility that the evidence related to the cause of action described in the declaration.

Where the cause of action is single and indivisible, the objection that a confession admits no particular claim, would, in the view we take of the question, be generally more refined than substantial, as it would be a matter of fact whether the evidence related to the cause of action declared on and confessed, and the fact in most cases would be too clear for doubt or cavil.

Judgment on the verdict.