
    *NEW HAVEN COUNTY,
    FEBRUARY TERM, 1859.
    Present, Stokes, C. J., Hinman, Ellsworth, Sanford and McCurdy, Js.
    Russel H. Havens vs. Hartford and New Haven Railroad Company.
    A demurrer to a declaration admits the facts alleged, for the sole purpose of raising the question of law whether the declaration presents a cause of action.
    The admissions of a demurrer can not therefore he used against the party demurring, upon a hearing in damages, as evidence of the particular matter alleged.
    So far as the allegations of the declaration pertain to the question of damages, their truth is not admitted at all; and so far as they relate to the cause of action, and are material, no particular allegation can be regarded as admitted, so long as there are other material allegations sufficient to show a cause of action.
    Upon a hearing in damages, after the overruling of a demurrer, the case stands, with reference to the evidence necessary for the plaintiff and admissible for the defendant, precisely as it would have stood upon a default.
    In the absence of proof of actual damage on such a hearing, the plaintiff is entitled to nominal damages only.
    And the admissions of the demurrer are applicable even to the principal wrongful act only in its relation to the question whether there is a cause off action, and not at all in its relation to the question of damages.
    Where therefore, in an action on the case for damages caused by the negligent acts of the defendant, the plaintiff had alleged in detail sundry acts of the defendant going to constitute the principal wrongful act, it was held that it was incumbent upon him, on such a hearing in damages, to make out the facts thus alleged by proof, and that the defendant might introduce evidence in contradiction, and might, show that wrongful acts of the plaintiff himself entered into the transaction and that some portion of the damage claimed was attributable thereto.
    An action on the case is an appropriate remedy for injuries caused by the wrongful acts of a servant of the defendant, even though such acts have been *acts of force, and such that trespass would have been [ *70 ] the only proper remedy against the servant.
    A count, purporting to be in case, and alleging negligent wrongful acts of the defendant, is not to be regarded as a count in trespass, simply because it alleges, among such negligent acts, other acts of force, and which in themselves would have been proper matter for a count in trespass.
    The assignment, as a special ground of demurrer, “ that the plaintiff improperly alleges in his said declaration and in the several counts thereof, several and distinct causes of action,” is not sufficiently definite to reach duplicity in the declaration.
    Duplicity in pleading.
    Action on the case, for injuries sustained by the plaintiff as a passenger in the cars of the defendants, by means of their negligence and of the wrongful acts of their servants.
    
      The declaration contained fo.ur counts, the first of which was as follows:
    In a plea of the case, whereupon the plaintiff declares and says, that on the first day of November, 1855, and for a long time before, the defendants were the proprietors of a certain railroad, a part of which runs from said New Haven northward to the town of Berlin and thpnce eastward to the city of Middletown, in said state, and were also in the use and occupation of divers railroad cars for the conveyance and transportion therein of passengers and baggage upon and over said railroad ; and, during all the time aforesaid, were accustomed, for certain hire to them in that behalf paid, to convey passengers and baggage in their said cars over said road ; and the defendants being such proprietors, and in the use and occupation of said cars as above mentioned, the plaintiff, on said 1st day of November, at said New Haven, at the request'of the defendants, became and was a passenger in. said cars of the defendants, to be, with his baggage, consisting of a certain trunk and a certain wooden tool chest containing tools belonging to the plaintiff, and which said trunk, chest and tools were of the value of one hundred dollars, safely and securely carried in said cars, upon and over said road, from said New Haven to said Middletown, for a certain fare and reward then and there paid to and received by the defendants in that behalf; and the defendants then and there [ *71 ] *'received the plaintiff as such passenger, with said baggage ; and thereupon it became and was the duty of the defendants to use due and proper care that the plaintiff, with said baggage, should be safely and securely carried by and in said cars upon and over said road from said New Haven to said Middletown. But the plaintiff says that on said day, while the plaintiff was being transported as aforesaid with said trunk and tool chest, and before said cars had reached said city of Middletown, the defendants, by their servants and agents, so negligently, unskillfully and improperly handled and transported said tool chest and trunk, as by reason of said negligence and carelessness greatly to injure and damage the same. And the plaintiff says that on said day, while said cars were passing over and along said road to said Middletown, the defendants, by their agents or servants then and there having the management and control of said cars, in which the plaintiff was a passenger with his baggage as aforesaid, in pursuance of the regulations of the defendants, did demand of the plaintiff a certain check or ticket in the possession of the plaintiff, the same being a receipt of the defendants for the fare or reward previously paid by the plaintiff to the defendants as aforesaid, which said check or ticket the plaintiff then and there declined to deliver to the defendants or their agents, for the reason that he wished and had a right to retain the same op account of said injury to his said baggage, and as evidence of his said contract with the defendants. And the plaintiff says that the agents and servants of the defendants, then having the management and control of said cars, and while engaged in the business of the defendants as their servants and agents, did, in consequence of said refusal to deliver said check or ticket, then and there wrongfully endeavor to eject the plaintiff from the car in which he was then journeying as aforesaid ; and in such endeavor did, with negligence and carelessness, seize and lay hold of the arms and shoulders of the plaintiff, and did jerk and thrust him from his seat or chair with such negligence and carelessness as to greatly injure the clothing of the plaintiff, (to wit: one overcoat, which the plaintiff then and there *wore, of the value of $25,) and did with like negli- [ *72 J gence and carelessness thrust and strike the knee of the plaintiff against the arm of said seat or chair; and many other wrongs said servants and agents in the business of the defendants then and there did, whereby said agents and servants so acting as aforesaid, by reason of said negligence and improper conduct and want of due and proper care, did seriously wound and injure the plaintiff, did permanently cripple the limb and seriously endanger the life of the plaintiff; by means whereof he has been rendered permanently lame and a cripple for life, has suffered great pain both of body and mind, and has been permanently disabled and prevented from pursuing his trade or occupation, which said trade or occupation is that of a ship joiner, and has expended, and has been obliged to expend, a large sum of money, to wit: the sum of one thousand dollars, in and about endeavoring to be cured of said injuries and lameness caused as aforesaid.
    The second count was essentially like the first. The third count, after alleging that the defendants were the proprietors of the railroad and accustomed to carry passengers thereon for hire, proceeded as follows:
    And the plaintiff says that, by the rules and regulations of the defendants, it was the duty of the conductors, agents and servants of the defendants, having control of the cars running upon said road, to demand of the passengers in said cars, the checks or tickets held by them respectively as evidence of their having paid the fare upon said road, and upon the refusal or neglect of any passenger to give up his check or ticket when so demanded, forthwith to expel and eject said passenger, so refusing or neglecting to give up said check or ticket. And the defendants being the proprietors of'said road, and in the use and occupation of said cars as aforesaid, on the first day of November, 1855, the plaintiff, at the request of the defendants, at said New Haven, became and was a passenger in said cars, other than those in the preceding counts mentioned, to be safely and securely carried therein, upon and over said road, from said New Haven to said Middletown, for a certain other fare and [ *73 ] reward then *and there paid to and received by the defendants in that behalf; and the defendants then and there received the .plaintiff as such passenger, and then and there, in consideration of the receipt of said fare or reward, gave to the plaintiff a certain receipt, ticket, or check to be retained by the plaintiff till demanded by the defendants’ agents or servants in pursuance of the aforesaid rules and regulations, as evidence that said fare or reward had been paid to the defendants by the plaintiff. And the defendants having received the plaintiff' as such passenger, it then and there became and was the duty of the defendants to use all due and proper care that the plaintiff” should be safely carried, by and in said cars, over said road from said New Haven to said Middletown. Yet the defendants, not regarding their duty in this behalf, did not use due and proper care that the plaintiff should be safely carried by and in said cars, over and upon said road from said New Haven to Middletown, but wholly neglected so to do. And on said first day of November, 1855, and while-said cars, in which said plaintiff was a passenger as aforesaid, were passing along and over said road to said Middletown, the defendants, by their conductors, agents, or servants, then having control and management of said ears, in pursuance of the rules and regulations aforesaid, did demand of the plaintiff to deliver to the said conductors, agents or servants, the check or ticket then and there in the possession of the plaintiff as evidence that his fare had been paid as aforesaid ; which said check or ticket the plaintiff then and there tendered and proffered to the defendants’ said conductors, servants or agents. And the plaintiff says that the defendants, by their said conductors, servants or agents, negligently, carelessly and improperly omitted to notice said tender, and to take and accept said check or ticket so tendered and proffered as aforesaid, and did not take the same by reason of said negligence and carelessness ; and the defendants, by their said conductors, servants or agents, not having noticed said tender -or taken and accepted said ticket or check, bv reason of their carelessness and negligence as aforesaid, did stop said cars, and did threaten and at- [ *74 ] tempt *to expel and eject the plaintiff therefrom, and with negligence and want of pi’oper care, did pull the plaintiff from his seat in said ears, did thrust and strike the knee of the plaintiff against the arm of said seat, and did tear and damage the clothing of the plaintiff, to wit: one overcoat of the value of twenty-five dollars, which the plaintiff then and there wore ; whereby, and by reason of said negligence in not noticing said tender and accepting said check or ticket when tendered as aforesaid, and want of care, the plaintiff was greatly wounded and injured in his limb ; was rendered permanently lame, and a cripple for life ; has suffered great pain ; has been and still is prevented from pursuing his ordinary trade or business, which is that of a ship joiner, and has thereby lost great gains which would otherwise have accrued to him from his carrying on the same; has been permanently disabled from pursuing his said trade ; and has necessarily expended a large sum of money, to wit: the sum of one thousand dollars, in and about endeavoring to be cured of said injuries and lameness caused as aforesaid.
    The fourth count was more general, but alleged substantially the same facts.
    The defendants demurred generally to the declaration, and added the following special demurrer. “ And the defendants show to the court, among other causes of demurrer apparent upon the said declaration, the following, viz: that the plaintiff improperly alleges in his said declaration, and in the several counts thereof, several and distinct causes of action, and causes of action of different natures, requiring different forms of action, viz: of trespass with force and arms, and tresspass on the case, and which cannot be properly joined in the same count or declaration.”
    The court overruled the demurrer, and a hearing in damages was had. On this hearing the plaintiff offered himself as a witness, and gave a detailed account of the transaction described in the declaration and of the injuiy which he received. He offered other evidence also upon the same points, and the defendants introduced evidence in explanation and *contra- [ *75 ] diction. -On this evidence the court found the following facts.
    The plaintiff, on the first day of November, 1855, purchased a ticket at the office of the company in New Haven, for Middle-town, and took passage in the cars. He had with him as extra baggage a carpenter’s tool chest, on which he paid fifty cents extra freight; The chest was safely landed on the platform at the Berlin station, preparatory to a transfer of it to the Middle-town baggage car. While so upon the platform, one of the agents of the company,- thinking it stood too near the edge and might be stricken by the cars when they started, seized it hastily and, jerking it away, broke the handle. The plaintiff, on his passage from New Haven to Berlin, surrendered his through ticket to Middletown, and received a check which was intended to pass him over the Middletown branch from Berlin, and left the cars at Berlin to take the cars on the branch road. While standing on t]ie platform he saw the breaking of his chest handle, and complained to the agents of the company, and then expressed his determination not to surrender his check until he was made good therefor. The branch road from Berlin to Middletown has but one regular stopping station, East Berlin. ■ All the others are flag stations. The'plaintiff continued on-in the cars on the branch road. Aftei the cars had started, an assistant conductor •went through the cars for the purpose of collecting-the tickets and checks. The plaintiff was sitting on the forward seat of the principal passenger car, and was the first person approached, by him. The conductor called for his ticket. The plaintiff declined to deliver it unless the damage to his chest was paid. He was informed by the conductor that he must appeal to the officers of the company. The conductor passed on through the cars and collected the checks. This was done in accordance with the customs and regulations upon the road, which were reasonable and necessary, in order to know what passengers, if any, there were for the way flag stations. After collecting the tickets the conductor returned to the plaintiff and demanded his check.
    The plaintiff again refused to deliver it unless paid for [ *76 ] the ^injury to his chest. About this time the train stopped at East Berlin, the conductor went out,' and another passenger there entered the cars. After the train had again started, the conductor returned to the passenger car, took the ticket of the passenger from East Berlin, and again demanded the plaintiff’s check, assuring him that he must give it up or leave the cars. He again refused to deliver it unless paid for the injury to his chest- The assistant conductor thereupou went forward, found the regular conductor of the train, who was then on the engine, and informed him of the fact; and both conductors returned to the passenger car. The regular conductor then demanded the plaintiff’s check, and informed him that he should put him off the train unless he gave it up. The plaintiff exhibited his check, but declined to give it up unless a receipt was given for it or the damage to his chest was paid. He said he wanted the check or a receipt, to show the officers of the company that he had been upon the road. The conductor informed him that he must put him off the train, raised his hand and pulled the bell cord, giving thereby the signal to the engineer to stop, and turned and opened- the door of the car. While the conductor was thus stopping the train and opening the door, the plaintiff, having the check in his hand, said, “If you are going to make a muss about it I will give it up,” but in the excitement of the moment the remark was not heard by the conductor. After opening the door the conductor requested the plaintiff to leave, but he did not. The conductor then approached the seat in which the plaintiff sat. The plaintiff was sitting alone in the seat, with his back to the side of the car, his right side to the back of the seat, and his right hand over it, and his right leg bent up upon the seat, and his left foot upon the floor. When the conductor approached him he braced himself with his back firmly against the side of the car, and his right foot against the front upright part of the rail, or his knee against the top piece of the rail, but which of them is left in great doubt by the testimony. The conductor took a position in the aisle of the car, by the side of the rail of the seat, leaned his left hand on the back of the *seat, reached forward with his right hand, and [ *77 ] took the plaintiff by the coat in front and. endeavored to lift him from the seat. The plaintiff resisted, having a leverage with his right knee against the cross piece of the rail, or his right foot against the front upright portion of the rail, and also by raising his left foot and placing it against the front upright portion of the rail. The conductor raised the plaintiff about four inches upward and forward, but the coat of the plaintiff gave way, and the force used by the conductor, aided by the bracing leverage of the plaintiff’s feet, or foot and knee, against the railing, broke off the railing from the seat, and the back of the seat, upon which the conductor was supporting himself with his left hand, being no longer sustained by the railing fell down with it. The conductor losing that support desisted, and the plaintiff settled back into his seat again. During this effort to remove the plaintiff, and either by the violent pressure of the knee against the cross piece of the rail by the force exerted by the conductor and the bracing resisting leverage of the plaintiff, or in consequence of the knee being brought violently in contact with the. iron which connects the back of the seat to the cross piece of the rail when the rail gave way and the back fell, the right knee of the plaintiff was injured. When the rail gave way, as stated, and the plaintiff settled back in his seat, the conductor turned to the door of the car and called in the brakemen, who were standing outside upon the platform, to his assistance. At this point one of the passengers interfered and asked the conductor why he did not take the ticket when offered to him. The conductor replied that it had not to his knowledge been offered. The plaintiff then tendered his ticket or check again, and it was received, and the affair ended. The injury did not, at the time, occasion much pain, nor was it, if'sufficiently cared for, serious or dangerous. There was danger, as the result showed, that inflammation might occur, which, if aggravated or neglected, might involve the internal surfaces of the joint and endanger its loss ; but such a result was not a necessary one, and sufficient prudence and care would have prevented it.
    *Here follows a statement with regard to the neg- [ *78 ] lec.t of the plaintiff to take proper care of the injured limb, and as to the ultimate effect of the injury, which was to make the plaintiff a cripple for life. These facts have however become unimportant in the result.
    Upon the facts so proved, it was claimed by the counsel for the plaintiff that, in assessing damages, all the facts substantially well pleaded, and the reasonable inferences to be drawn from them, were admitted by the demurrer; and that the court should disregard all the facts proved or claimed to be proved inconsistent therewith. The counsel for the defendants1 claimed that the demurrer admitted whatever well pleaded averments it would be necessary for a jury to find in order to justify a verdict in favor of the plaintiff, and nothing more. They thereupon further claimed, that if the court should be of opinion, on the evidence, that the plaintiff received any personal injury to which his own culpable conduct and negligence essentially contributed or gave occasion for, it was no ground of damages ; and that re-' fusing his ticket when demanded, and bracing himself improperly against the arm of the seat, to resist the defendants’ servants in the performance of their duty, constituted such culpable conduct and negligence in this case.
    The court assessed the damages conditionally, with reference to the view of the case which might be taken by this court. The points in relation to this subject were stated as follows:
    1st—If the averments of the third and fourth counts of the declaration, or of either of them, and the operation of the demurrer, are such that the defendants are liable for all the consequences resulting from the injury received in this case, or if, in the opinion of the supreme court, the defendants are so liable on the facts found, then the damages are assessed at $3,500.
    [2d. In a certain view, a statement of which the result has rendered unimportant, the damages on these counts were assessed at $>1,500.]
    [ *79 ] *[3d. In a certain other view, for the same reason not important to be stated, at $1,000.]
    4. If the operation of the demurrer is such that the defendants can be permitted to show that the resistance of the plaintiff essentially contributed to tbe original injury, (which the court found to be the fact upon the evidence,) and also the other facts which were shown, and the court should be of opinion upon the facts so shown that such resistance was unjustifiable, and should reduce the damages to substantially, nominal damages, then the damages upon the third and fourth counts are assessed at 1100.
    5th. Damages are assessed at twenty-five cents on the first and second counts.
    The questions as to which of the sums should be assessed to the plaintiff, ánd whether the demurrer was properly overruled, were reserved for the advice of this court.
    ' The case was argued before this court at its session in the county of New Haven in September, 1858, and the judges then sitting, Hinman, Ellsworth, Sanford and Waldo, were equally divided in opinion upon the principal question of the case. It was thereupon continued to the present term of the court, when it was re-argued by the same counsel.
    
      Baldwin and Chapman, for the defendants.
    1. As to the sufficiency of the declaration. It contains four counts. We have demurred specially; first, for duplicity; secondly, for misjoinder of counts. The first and second counts are essentially the same, and are open therefore to the same objection. Each contains two distinct causes of action ;—first, the injury to the tool chest; secondly, the injury to the plaintiff’s person. Havens v. Hartford Sf Neto Haven R. R. Co., 26 Conn., 220. The third count is objectionable as being a count in trespass, and therefore improperly joined with the other counts, which are in case. The wrongful acts charged in this count are acts of force—seizing the plaintiff, pulling him, attempting to eject him from the cars. It is an ordinary count for an assault and battery. It is true that the pleader has called it a count in case, but this is *not enough to make it so. [ *80 ] Ogle v. Barnes'^ 8 T. R., 188. Burdick v. Worrall, 4 Barb., 597. The fourth count is entirely too general. It states no particular acts of negligence. It is a count on which the plaintiff would not have been allowed to offer evidence. 2. If the demurrer was properly overruled, then we are brought to the question of damages. And here is the great question of the case—was the evidence offered in mitigation of damages admissible, or should it be ruled out as inconsistent with the admissions of the demurrer. What then is the effect of a demurrer? Judge Gould (Pleading, p. 46, sec. 43,) says, that a demurrer is not so much a plea as an excuse for not plead • ing. Again, he says, that a demurrer is a refusal to answer the declaration. Again, (p. 471,) allegations impertinent or immaterial, are not admitted by a demurrer, because, what a party could not answer by pleading, he does not confess by not answering. And again, (p. 63, note,) he says, material facts are such as are essential to the right of action or defense. A demurrer then merely refers the question of law to the court, whether, supposing the facts alleged to he true, the plaintiff has a right to recover. It has nothing to do with the question of damages. It merely admits that some damage, as a necessary and proximate result, has ensued. The form of the demurrer indicates this—• “ that the plaintiff ought not to have and maintain his action.” It is not true at all that a demurrer admits every allegation well pleaded, because many of the allegations of a declaration pertain wholly to the damages, and not to the right of recovery. “ Material ” means material to the question to be tried by the court; and that is, whether the plaintiff can sustain his action. When the demurrer is overruled, then comes the interlocutory judgment that the plaintiff shall recover his damages. If the declaration is on a bill of exchange or a promissory note, the note or bill is produced on the inquest as to damages, that it may be seen whether there are any indorsements upon it; and the defendant may show that a part of it has been paid; but he would not be allowed to show that there was no indebtedness at all, [ *81 ] as he has admitted by*kis demurrer a cause of action. The case stands on a demurrer just as it would have stood on a default. In both cases the defendant refuses to answer the declaration. He has properly neither admitted or denied the allegations of the declaration, but has simply refused to answer. The court sees that the plaintiff has alleged enough to warrant a recovery, and therefore proceeds to inquire as to how much he ought to recover. The damages to be recovered may depend on special allegations of the declaration, or may follow naturally from the cause of action alleged. In cases where it is necessaiy to allege special damage, the court will look to see whether there are such allegations of damage as will warrant a recovery, and will also look to see whether the damage thus alleged is of such a character as to be the legal consequence of the wrongful act charged. Thus, in Vickars v. Wilcox, 8 East., 1, the court sustained a ,demurrer, because the special demage alleged was a wrongful act of a third party, which could not be a legal consequence of the act of the defendant. Stephens (Treat, on Plead., p. 243,) says, that a traverse can not be taken of mere matter of aggravation, which is matter for evidence to the jury on the question of damages. Thus, in an action for the chasing of the plaintiff’s sheep, per quod the sheep died, he says that the sheep’s dying is a matter -wholly for the jury on the inquest as to damages, and is not traversable as having any connection with the cause of action. The effect of a demurrer is well illustrated in 1 Saunders’ PI. & Ev., 953, where it is laid down that a demurrer to a declaration in slander admits the speaking of the words, but not that they have the meaning stated in the innuendo. The only case that has been cited, as bearing with any directness against our position, is that of Hyde v. Moffat, 16 Verm., 271, which was decided by a divided court, and in which Judge Redfield gives an able dissenting opinion. Moreover, the cases of Collins v. Smith, and Webb v. Webb, in the same volume, (pp. 9, 686,) seem to be entirely inconsistent with the doctrine of that case. In the present case there are facts enough alleged to show a cause of action, which are wholly independent of the allegation of *fhe injury to the plain- [ *82 ] tiff’s knee. Thus, the pulling him from his seat, and tearing of his coat, would each give a right of action. So would an excess of force in the attempt to eject him, although the principal force used, and that which caused the injury to his knee, might have been perfectly justifiable. How did all these facts get before the court on its inquiry as to the damages ? The plaintiff and his witnesses testified with regard to them. Why did the plaintiff bring all this evidence before the court ? Because his counsel knew that it was necessary for him to prove his damage—for the very reason, as they well knew, that our demurrer admitted nothing but a bare cause of action. It has been said that the right of trial by jury is a constitutional one, and that the defendants cannot thus take a case from the jury and compel a party to submit to an assessment of his damages by the court. But the constitution introduced no new practice on the subject. It did not extend the right of trial by jury. It only secured it. And it has always been the practice in this state for the court to assess the damages on a default or a demurrer ; and Oh. Justice Willes says, that by the common law the court might always assess the damages itself if it chose, or send the case to a jury for inquiry.
    
      Dutton and Watrous, for the plaintiff.
    1. The demurrer was properly overruled by the court below. Every count of the declaration is sufficient, and there is no misjoinder of counts. 1st. There is no duplicity in either of the first two counts. The cause of action in each is the injury resulting from the negligence of the defendants in the carrying of the plaintiff and his chest. The undertaking of the defendants to carry him and his chest was but one undertaking, and what is alleged with regard to the injury to the chest is merely matter of inducement. Such are the forms in 2 Chitty Pl., 708, and 2 Swift Dig., 519. 1 Chitty PL, 227. Raymond v. Sturges, 23 Conn., 134. But, if there is duplicity, the defendants can not take advantage of it under the present demurrer. That demurrer can be regarded as special only as to the matter of [ *83 ] misjoinder of ^counts. To be special as to the point of duplicity it must have pointed out in what precise particular the duplicity exists. Mansel on Demurrer, 97. 1 Saund., 337 b., note 3. 1 Chitty PL, 228, 663. Stephen on PL, 140. 2d. There is no misjoinder. While the declaration purports to be wholly in case, it is claimed that the third count is in trespass, and that, as the causes of action are not alleged to be the same, such a count is incongruous. But we claim that the count is in case. It is so in.its form. The matter alleged is proper matter for a declaration in. case, for case can be sustained against the master for the wrongful acts of his servants, even though those acts in themselves would have sustained an action of trespass against the servant. 1 Chitty PL, 131. 2 id., 707, note. Hamilton County v. Cincinnati and Wooster Turnpike Co., Wright, 603. But the acts of force set forth in the count are not alleged as the cause of action, but only as incidental, and as a part of the history of the transaction. The count alleges the negligence of the conductor in not noticing and accepting the ticket when offered to him, and alleges the attempt to eject him from the cars as the result of this negligence. 2 Chitty Pl., 710, 711, and note. Brucker v. Fromont, 6 T. R., 659. McManus v. Crickett, 1 East, 105, 110. Morley v. Gaisford, 2 H. Bla., 442. A party may'waive the force and sue only for the negligence where both exist. 1 Chitty Pl., 131, note. Id., 139. Moreton v. Hardern, 4 B. & C., 223. Percival v. Hickey, 18 Johns., 257. Wilson v. Smith, 10 Wend., 327. 2 Greenl. Ev., § 226. Wells v. Ody, 1 Mees. & Wels., 459. Blin v. Campbell, 14 Johns., 432. McAllister v. Hammond, 6 Cow., 342. 3d. The fourth count is sufficient. The only objection made to it is that it is too general. But it is sufficiently certain. If it is not, yet the defect is only one of form and good on general demurrer. 1 Chitty PL, 392.
    . 2. As to the effect of the demurrer upon the amount [ *84 ] of damages to be recovered upon the facts found by the court. It is laid down by all the authorities that a demurrer admits all the allegations of the declaration that are well pleaded. 1 Chitty Plead., 662, 3. Steph. on Pl., 143. Mansel on Demur., 96. 1 Saund., 337 b, note 3. 3 Bla. Com., 314. Arch. Pl. and Ev., 350. 1 Co. Litt., 72 a. Weems v. Millard, 2 Harr, and Gill, 143. Gould’s Pl., 461, § 4. Id. 477, sec. 43. Hobson v. McArthur, 3 McLean, 241. Hall v. Bartlett, 9 Barb., 297. Gilmer v. Allen, 9 Geo., 208. Winn v. Waring, 2 Brev., 428. A demurrer must answer the whole declaration. Steph. on Pl., 215, 217. 1 Swift Dig., 641. Frost v. Hammatt, 11 Pick., 70. A defendant has his choice, to plead or demur, but he must do one or the other, and so do it that the whole declaration, will be answered. By a traverse he denies the truth of the allegations of the declaration. By a special plea and by a demurrer he admits their truth. The admission in both'cases is the same. In the one case he savs, I admit that all that the plaintiff" has alleged is true, but a certain special fad saves me; in the other he says, I admit it all, but the law saves me. In each- case everything is admitted except mere matters of aggravation. If a demurrer is overruled, there follows an inquest of damages. But on this inquest the inquiry is, how much is the damage, not how it was caused, or whether the defendant, or some stranger, or the plaintiff himself caused it. The defendant has admitted by his demurrer that his wrongful act caused it. Sellon says that where the damages are certain on the record there is no writ of inquiry, as on a note or bond, but that there must be an inquest where the damages are unliquidated. 1 Sellon’s Prac., 355. De Gaillon v. L’Aigle, 3 Bos. and Pul., 368. Green v. Hearn, 3 T. R., 301. We do not claim that immaterial allegations are admitted. But when we allege- that our injury was caused by the defendant’s negligent act, the allegation is a material one, and if he demurs he admits its truth. Our vrhole right of recovery turns upon the truth of that allegation, and it is absurd to suppose that the defendant can afterwards, in the same case, set up that our negligence and not his caused the injury. The precise point now before the court was recently decided in favor of the position taken by us, by the supreme court of Vermont. Hyde v. Moffat, 16 Venn., 271, 279. It is true that Redfield J. did not concur, but he says in *his dissenting opinion, that [ *85 ] on a demurrer the defendant can not prove anything going to show that the plaintiff had no cause of action. The error on the other side we conceive to be this. In the absence of proof as to the amount of the damage, the court on a demurrer will give only nominal damages, and it is for the plaintiff, by his evidence, to raise the damages from this nominal sum to a sum which will be adequate to the real damage. Now, this being so, the counsel for the defendants claim that they may meet this evidence by rebutting evidence which shall reduce the damages again to that' nominal sum. This we may concede. But they claim that this rebutting evidence need not be confined to the mere matter of the damage done, with reference to an estimate of the real amount of that damage, but that they may inquire into the cause of the damage, and may show that the negligence of the- plaintiff himself was the cause, and that they have been in no fault at all themselves ; the result being, that if they ar.e held to pay nominal- damages, it will not be because the court on inquiry finds that to be the real amount of the damage on the evidence, but because a technical rule of law requires that some damage should be assessed against them. Now, we claim that the whole inquiry must be as to how much we were injured, and that it is too late to inquire whether the plaintiff has done us any injury at all. A defendant might just as well show that he was not connected with the injury at all, and that some third party did it, for whom he is in no manner responsible, submitting, as a purely technical thing, to nominal damages, and leaving us to look up another party, when perhaps it has become too late to sue. Any other rule would be intolerable, except that which holds the party by his demurrer to -have admitted that the injury, whatever it shall be shown upon the inquest to be, was done by him. The matter admitted by a demurrer is the same that the plaintiff would have proved to a jury, if the case had been tried before the jury.- This right of trial byajuryisa constitutional one, and the plaintiff can not be deprived of such a trial, except by a substitution for it of that which is £ *86 J equivalent to it, and that *'is, an admission of the facts which he would so have proved. It is as if the defendant should say,-you need not prove your case to the ^nry, as I admit all that the jury would find oh the evidence. This constitutional right is worth nothing, if, after a demurrer, the defendant may show that the plaintiff has no right of action. We claim that the defendants are liable for the whole damage found by the court below, and that, in no view of the case, will the law warrant the assessment of mere nominal damages.
   Ellsworth, J.

We will dispose of the minor questions presented by the record, and then consider the one which has chiefly occupied the attention of counsel.

The defendants have demurred to the declaration - as insufficient-on -its face. They say, in the first place, that there is duplicity in each of the first two counts, there being, as they claim, distinct injuries alleged in each, one to the person of the plaintiff and one-to-his tool chest. I think there is nothing in this objection, for, in the first place, duplicity in pleading is reached only by special demurrer, and the demurrer is a general one in relation to this point. In the next place, the injury to the tool chest is not the gist of the action, as will be more fully shown hereafter. And lastly, it is of no practical importance in the result, as twenty-five cents damages only are given on tjjose counts, and the plaintiff recovers full costs on the remaining counts.

Nor is there more force in the next objection, that the counts are misjoined, as trespass and trespass on the case. All are in case, in our view, for the same thing in substance and in form, though there is a good deal of historical matter which might as well have been omitted. If it be stricken out, the real cause or gist of the action will appear to be case and nothing else. But, were it otherwise, were the injuries stated immediate and the very gist of the action, the result would be the same, as they were effected by an agent and not by the defendants themselves.

What then is the exact technical ground of the action ? It is, as most correctly stated in the fourth count of the declaration, *an injury caused by the negligence and- [ *87 ] nonfeasance of the defendants. It is alleged in this count that the defendants, being the proprietors of a certain railroad ' running from New Haven to Berlin and Middletown, and common carriers of passengers thereon, received the plaintiff into one of their cars, to carry him from New Haven to Middletown with safety and care, but that they failed to do it, and the persons in charge of the train so misconducted, that by reason of their negligence, carelessness and misconduct, the plaintiff was not only not carried as agreed, but was injured in his person— what is said about specific injuries being evidence of the defendants’ default and omission, rather than of positive malfeasance, as the technical ground of the action. The specification of the injuries was necessary only to let in the proof on the trial, as they were not the necessary consequence of the breach of duty, and therefore not admissible except as thus alleged. What is said about the ticket, and the scuffle with the conductor, and the injury to the plaintiff’s knee, is important only in this point of view. But if I am wrong in this, and the ground of action is positive misfeasance rather than nonfeasance, the great question between the parties—to wit, the effect of a demurrer to the declaration—remains the same.

After judgment against the defendants on the demurrer, the plaintiff proceeded to adduce evidence of his injury on a hearing in damages, when the court found and assessed the damages conditionally, with reference to the view which this court should take of the case ; in one view of the case at $3,500 ; in another at $1,500 ; in another at $1000 ; and in still another at $100 ; the last sum being fixed as substantially nominal damages. A majority of the court thinking this last sum to be the correct one, I shall, without further remark, consider'the reasons for this opinion, which will show the views the majority entertain of the nature and consequences of a demurrer, in pleading.

The case has been twice argued before us, and has been regarded as presenting some new and difficult questions of law; But, with much respect for the opinions of others, we j- *gg j *f]o not after all discover either novelty or difficulty in the case. It presents nothing unusual, and, we feel quite confident, depends upo?} doctrines of the law and practices of the courts, universally established and of much antiquity, and which must commend themselves to the judgment of every one.

From the finding of the superior court, although it is unnecessarily' lengthy and complicated, bringing up, as it does, well nigh the whole case, fact as well as law, we can discover the main question in dispute, and in order to make an end of this protracted controversy, we will pass over the formal objections to the motion, and direct our attention to the principal question thus presented, deciding it in accordance with what we understand to be the law as laid down in the books.

It appears from the motion, that if the court could hut consider all the testimony which had been received, (and without objection,) touching the character, cause and extent of the plaintiff’s injuries, for which he brought suit, the plaintiff, in the opinion of the court, would be entitled to recover nominal damages and nothing more ; or, in other words, that upon the entire proof he did not appear to have made out a substantial cause of action against the defendants, for their- not carrying him safely and carefully from New Haven to Middletown. But if the demurrer was to be held to exclude certain material parts of the evidence from the consideration of the court because the contrary was conclusively admitted by the demurrer, then the defendants were liable for substantial damages, to be fixed by a consideration of other . and distinct facts. This is the language of the courtA'ncli if the operation of the demurrer, is such that the defendants can be permitted to show that the resistance of the plaintiff essentially contributed to the original injury, and also the other facts which were shown, and the court should be of opinion, upon the facts so shown, that such resistance was unjustifiable, and should reduce the damages to substantially nominal damages, then I find for the plaintiff to recover, and I assess the damages at >$100.”

We all of us agree, that, under the circumstances, the plaintiff’s resistance, after the conductor had in vain several *times demanded his ticket, according to the gen- [ *89 ] eral and proper usage of the company, was inexcusable and unjustifiable ; and that if all the circumstances can be taken into account, the defendants’ servants are to be regarded as having done no more, in attempting to remove the plaintiff from the car,'than they had a right to do. But it is claimed on the part of the plaintiff, that, after the demurrer, the character, causes and circumstances of the injuries complained of are not fully open to inquiry. To this point then I will direct mv attention, referring in the first place, however, to the case of Hibbard v. The New York and Erie Railroad Company, 15 New York, 455, where will be found a most elaborate and able discussion and decision with regard to the right of a conductor of a railroad train to put out of the car contumacious passengers who will not conform to the rules of the company. The doctrine there is carried further than is necessary for this case, but whether too far we need not say, though the reasons assigned in the opinion drawn up by Denio, J., seem entitled to great weight.

Let us consider then the main question of the case, the nature and consequences of a demurrer to the declaration in case or trespass, or in torts generally. We will then endeavor to apply the doctrine to the case on trial.

It cannot be necessary to multiply very greatly authorities on this point, since, properly understood, they are all one way— both those read by the defendants’ counsel and those cited on the other side—with one exception, .in the case of the latter, which will be noticed in its place.

Gould, in his treatise on Pleading, p. 46, sec. 43, says, “ A demurrer to the declaration is not classed among pleas to the action, not only because it may be taken as well to any other part of the pleadings as to the declaration, but also because it neither affirms nor denies any matter of fact, and is not therefore regarded as strictly a plea of any class, but rather an excuse for not pleading.” So on page 460, “ To demur is to rest or pause.” And again, “A demurrer merely advances a legal prop-position—it forms an issue in *law; admitting the facts, so [ *90 ] far as well pleaded, for the purpose of taking the opinion of the court preliminarily, its language is, allowing all that is alleged to be true, there is not any thing that calls for an answer, plea or defense.” If this is indeed true of the declaration or of a plea, then it is advisable, all will admit, that the question of law be settled in the first instance, for thereby a protracted and expensive trial of fact may be avoided, even though in many cases relief may be had by motion in arrest or motion in error. The admission by demurrer is never, I am confident, a rule of evidence ; nor is it so considered or treated, beyond this, that it necessarily follows from a judgment on the demurrer that there is a cause or some cause of action, but precisely what, and of how great extent, does hot appear; and without additional proof the plaintiff will recover or.ly nominal damages. The rule is modified in actions on notes, bills of exchange, and the like, but even here the amount due is not conceded by the demurrer, but the note or bill must be produced, that the real debt may appear, while the execution of the instrument is not denied. But in actions of trespass, trespass on the case, and kindred open actions, nothing is admitted beyond a cause or some cause of action, and if particular damages are not proved after judgment on demurrer, default or nil dicit, the plaintiff never takes more than nominal damages.

Archbold, in his treatise on Practice, (vol. 2, p. 10.) says, “Judgment upon demurrer is interlocutory or final in tbe same manner and in the same cases as judgment by default is interlocutory in assumpsit, covenant, tresspass, case, and replevin, where the sole object of the action is damages ; while in debt and ejectment, damages not being the principal object of the action, and those usually recoverable not being of sufficient consequence to warrant the expense of executing a writ of inquiry, the plaintiff usually signs final judgment in the first instance.” So on page 31; “A writ of inquiry is a judicial writ directed to the sheriff, stating the former proceedings, and then saying, because it is unknown what damages the plaintiff hath [ *91 ] sustained, you are commanded, by the *oath of twelve honest and lawful men of your county, diligently to inquire after the.same, and return the inquisition into court.’ ”

As the inquest is merely to inform the conscience of the court, the court may itself inquire and assess the damages, as is always done in this state. Bruce v. Rawlins, 3 Wils., 61, 62. Hewett v. Mantell, 2 Wils., 372, 374. Gould v. Hammersly, 4 Taunt., 148. 1 Doug., 216, note. In actions on bills and notes, the inquiry is often referred to a. master or prothonotary. 2 Saund., 107, note. Napier v. Shneider, 12 East., 420. Gould v. Hammersly, supra. But when the computation of damages is not a mere calculation, the court will not refer it to the master or prothonotary, but the plaintiff must proceed regularly with his writ of inquiry. When some difficult point of law is likely to arise in the course of 'the inquiry, or where the facts are important, the court will let the writ of inquiry be executed before the' chief justice or a judge of assize. 1 Sellon’s Prac., 344. Arch-bold again says, (p. 38,) “ In trespass or any other action where the damage actually sustained by the plaintiff; is the measure of daniages to be given by the jury, if the plaintiff do not prove the nature of the injury and the amount of the damages sustained by him, the jury always give nominal damages only.”

Like views are to be found in 3 Chitty’s General Practice, 672 ; 3 Blackstone’s Commentaries, title “ demurrer,” 1 Chitty’s Pleading, 654; Bingham on Judgments, 2, 36; Saunders’ Pleading and Evidence, 953, and 3 Stephen’s Commentaries, 639. The same doctrine is laid down in our own decisions. In the case of Sturges v. Bush, (5 Day, 452,) which was an action of account for certain enumerated articles, the plaintiff was held bound to prove before the auditors every article for which he sought damages, though the plaintiff insisted that they had all been admitted and found to have been received by the defendant to account for. The same was held in the case of Lacon v. Davenport, 16 Conn., 331. In the case of Parker v. Hotchkiss, 25 Conn., 321, it was held that a judgment between the same parties in a former case, was evidence only of what it was necessary for *the party prevailing to prove in that case, [ *92 ] not of what was alleged or might have been proved. A similar doctrine is expressed in the case of Curtis v. Chapin, 23 Conn., 399. In Pease v. Phelps, 10 Conn., 62, the court say, “A demurrer presents only an issue in law to the court for consideration ; the jury have no concern with it; and although it is a rule of pleading that a demurrer admits facts well pleaded for the sole purpose of determining their legal sufficiency, yet as a rule of evidence it was never supposed that a demurrer admitted any thing.” The same was held in Tompkins v. Ashby, (1 Mood. & Mal., 32,) in which the marginal note is, “A demurrer or plea to a bill in equity does not admit the facts charged in it, so as to be evidence against the defendant, if those facts arise in a future action between the same parties.” Abbott, Ch. J., remarked in that case, that it was nothing more than saying that, if the facts be so, the defendant is not bound to answer. In Montgomery v. Richardson, 5 Car. & Payne, 247, it was< decided that- facts demurred to in one plea can not be used as evidence on another plea. In Bates v. Loomis, 5 Wend., 134, it was held that in an action for an assault and battery, if the defendant does not plead but suffers a default, such default admits an assault and battery, but it does not admit one on any particular day, as on the day laid in the declaration, nor does it admit any circumstances laid in the declaration by way of aggravation ; and without proof in such case that the injury complained of was committed by the defendant, the plaintiff is entitled to only nominal damages.

The plaintiff’s counsel read a decision of the supreme court of Vermont, (Hyde v. Moffat, 16 Verm., 271,) in which a majority of that court seem to have held, that in the assessment of damages in .an action of tort, the demurrer, as a rule of evidence, is held to admit all the facts pleaded and the inferences to be drawn from them. Redfield, J., the present chief justice of the court, dissented. He says, “ This is a different rule from any I have known before. In actions of tort, and indeed in all actions where the allegations are general, as they al- [ *98 ] way's are in tort, I had supposed that a default *or demurrer only admitted that which it was necessary to prove in order to recover on the general issue. Indeed I think this will be found the true rule in all cases. Hence, if the declaration be upon a written contract, the entire contract is admitted, because it is necessary to prove the entire contract in order to recover upon the general issue, else there would be a fatal variance.” This opinion is in harmony with the entire current of authority both in this country' and in England, and very little weight can be given to the opinion of the majority of the court, as the samé court, in the later case of Webb v. Webb, reported in the same volume, page 636, adopted the views of Judge Redfield as correct. So an earlier case in the same book, Collins v. Smith, page 9, seems to be irreconcilable with the opinion of the majority in that of Hyde v. Moffat.

The claim of the plaintiff’s counsel, unless we misapprehend them, is that a demurrer admits the truth of the entire declaration for every purpose throughout the progress of the case, or that every allegation which could have been proved for any purpose to tbe jury, whether it be a part of the gist of the action or not, is to be assumed to be absolutely true, because the jury might have found it to be true, had they been allowed to pass upon' it. This can not be the correct rule, upon their own authorities, and it is abundantly disproved by every book of practice in the language. If however this is not their view, and they mean only that such facts are admitted as are essential to a recovery, then there is no important difference between them and the gentlemen on the other side, and the question becomes simply one as to the proper application of a principle of law long recognized and well established.

We will state a case or two to show how erroneous is the view that a demuri er is a rule of evidence. A person is sued in trespass for entering another’s house and carrying off articles, of. household furniture. The plaintiff can recover, on the general issue, by proving an entry only; or, passing by the entry, as in the case of Holley v. Brown, (14 Conn., 255,) and treating the tort as only a trespass to personal property, he can ^recover if he proves that the defendant took away a [ *94 3 single article only ; and if, instead of going to the jury, the defendant had demurred or suffered a default,'neither one of these acts specifically would be proved by the judgment, any more than it would be by a verdict had the defendant gone to the jury ; and it will not be pretended.that this would have been the consequence of a verdict, for neither separate act was indispensable to a recovery bv the plaintiff. Again, a person is sued for an assault and battery, the pleader alleging divers special injuries, to his dress, his person, his health, &c. The plaintiff can recover upon proving only that the defendant laid his hand violently upon him. Hence we insist that a demurrer or default proves nothing more than this ; nor even this as a specific act; and nothing but nominal damages will be given unless there be further proof. The same is true where there are distinct counts in the same declaration. A demurrer in that case admits only a single cause of action, so that on a motion in arrest one good count is enough, and one tortious act in that one count is enough.

On the next point, the application of the law as we have above stated it, there is, in our judgment, no difficulty whatever ; and nothing would be more extraordinary than, on such a general open declaration as this, for the court to overlook and reject evidence already received, conducing to show the cause, occasion or extent of any supposed injuries sued for. We say it would be an extraordinary spectacle—a court overlooking and disregarding material and decisive proof, upon the idea that a demurrer blinds the eyes of the judge to whatever is beneficial to the defendants. Why, on a hearing in damages even, that which might have availed as a complete defence, had it been so pleaded, may be brought in to reduce the damages—as the payment of a,n account, or a discharge and release, is evidence before auditors in an action of account, to prove that there is nothing in arrear. In the case of Williams v. Miner, (18 Conn., 464,) this court held that evidence tending to prove the truth of the slanderous words might be admitted to affect the question of damages, although a plea in bar might have been put in. In this case, *page 478, Oh. J. Church says, “ We are not sat- [ *95 ] isfied that a defendant should be deprived of the beneefit of mitigating circumstances for no better reason than that they conduce to prove the truth of the charge. The same general doctrine is held in- Hyde v. Moffat, above cited. Besides, for ought that appears, the plaintiff was willing that all this evidence should come in. He certainly did not object to it until afterwards, and perhaps the material parts of it came from his own lips in his testimony in chief or on his cross examination. And so too he need not have gone into the transaction at all, if he had confidence in the consequences of the demurrer; and we think he would not, but would have remained silent, if he had not believed and was not instructed by counsel, that the burthen of proof lay on him if he expected to recover substantial damages. And certainly, whatever the plaintiff might attempt to prove to aggravate the damages he sought to recover, the defendant may meet with counter proof, and so confine him to his mere nominal damages.

I have already said, that the most correct view of this declaration is, that the defendants are sued as common carriers, for a breach of duty in not carrying the plaintiff safely and carefully to Middletown. If this be so, if negligence and omission are the gist of the action, and all that is said about the ticket and the scuffle and the special injuries sustained by the plaintiff are collateral to the issue and need not be proved to enable the plaintiff to recover, then they are not admitted, any of them, by the' demurrer, and there is nothing left for further controversy between the parties.

Following out this view7 of the declaration, I inquire, what are we to understand as admitted in this case by the demurrer ? In my judgment, nothing but that the defendants were common carriers on the road in question, and received the plaintiff into one of their cars to carry him wdth care and safety from New .Haven to Middletowm, and have failed to do it as agreed. This gives a complete cause of action. Strike this out of the declaration, and it is by no means certain that there is enough left to enable the plaintiff to recover; but with this in, and [ *96 ] the rest stricken out, there is enough *left for a good cause of action. The wrongful acts specified go only to the manner and special consequences of the defendants’ default.

But, if we are wrong in our view7, if the action is founded in misfeasance rather nonfeasance, and the gist -of the action is the positive acts of the defendants? agents, the result, will not be essentially different; for then only one of these acts needs to be proved on the general issue—the tearing the plaintiff’s coat— the putting the hand violently upon his person—-the raising him from the seat—or the attempt to eject him from the car; each would sustain the action, even in that point of view; and therefore only one is proved by the verdict or demurrer, and not eve.n tiiat specifically. Mav not the defendants show, on the hearing in damages, notwithstanding the demurrer, that the plaintiff’s knee was not hurt at all ? or if so, that it was caused bv his attempt to assail the conductor, or in his twisting his limb under the seat in order to keep from being ejected from the car, or in springing over the seat to avoid the conductor ? If so, and the injury to the knee may be denied and disproved, the manner and degree in which it is claimed to have been done by the defendants may be disproved ; for the greater includes the less, and the proof of the manner may well show, as it did in this case, that the plaintiff himself was the author of this particular injury ; and were it true that the defendants, by plea, could have set up such misconduct of the plaintiff in bar of the action, which we by no means concede, still, the entire proof being before the court, and it appearing that there had been no negligence, misconduct or fault in the defendants, it would be strange indeed for the court to adjudge the defendants to pay the plaintiff damages brought upon himself by his unpardonable contumacy and violence, when it is not found that the particular injury to the knee was caused by the defendants’ agents at all.

Nor does it follow from the demurrer that the character of the scuffle in the car, when the plaintiff set the rules of the company at defiance, can not be known and judged of and made the rule of right between the parties. It can not be so. *The demurrer can not be allowed to clothe the acts [ *97 ] of the defendant’s agents, (supposing them to be improper,) with a character or quality which will not allow of a full examination of them on their merits, or which must exonerate the plaintiff contrary to the justice of the ease, and contrary to what would have been the result in a trial on the general issue. »

We advise judgment for one hundred dollars damages.

In this opinion, Hinman and McCurdy, Js., concurred. Sanford J., dissented. Storrs, C. J., being disqualified by interest, did not sit.

Judgment for $100 damages.  