Tomlinson v. Town of Derby.

to add to the damages the sum of one hundred dollars per month on account of the plaintiff's loss of income or profits resulting from the interruption of his business, we must conclude that such was the purpose for which it was offered and received.

The question here presented we think may well be distinguished from those cases where, for the purpose of showing the loss of capacity or extent of injury, it has been permitted to the plaintiff to show the kind and amount of labor that he was accustomed to perform before the injury as compared with that he was able to perform afterwards, as was allowed in Wade v. Le Roy, 20 How., 43, and in Ballou v. Farnum, 11 Allen, 73; though in the last case it should be remarked that the declaration contained an explicit averment covering the matter offered in evidence.

We would also distinguish this case from other cases where the question was simply one of damages, without any reference to the rules of pleading.

There is no doubt that in an action for a personal injury that prevents a person from attending to his business, the nature and extent of that business, the fact of its interruption, and the resulting loss of earnings, (unless too remote or contingent,) are all legitimate elements of damage. The admis sion of such evidence has been sanctioned in a great variety of cases, among the most recent of which are the following: Walker v. Erie R. R. Co., 63 Barb., 260; Hanover R. R. Co. v. Coyle, 55 Penn. S. R., 396; New Jersey Express Co. v. Nichols, 33 N. Jersey, 434; Nones v. Northouse, 46 Verm., 587; Potter v. Metropolitan Railway Co., 28 Law Times, No. 8, New Series, p. 735.

These cases do not seem to have turned at all upon the state of the pleadings, but solely upon the question what were the proper elements of damage. In some of the states the com mon law rule of pleading has been abolished, and in other states these rules are so relaxed by the growing disregard by the courts of all mere technicalities, that questions of damage are decided without much reference to the pleadings.

In this state however we still adhere closely to the technical

Tomlinson v. Town of Derby.

rule of the common law, that where the damages are special the matter must be distinctly averred in the declaration in order to apprise the defendant of the nature of the claim. Bristol Manf. Co. v. Gridley, 28 Conn., 201; Taylor v. Town of Monroe, 43 Conn., 36; 1 Chitty on Pleading, 428.

Special damage is that which the law does not necessarily imply that the plaintiff has sustained from the act complained of. It is often very difficult to distinguish general from special damage. The necessary result of an injury is often and easily confounded with the natural and proximate result, and all legal damage whether general or special must naturally and proximately result from the act or default complained of. It is difficult to lay down any general rule by which to determine when the law implies the damage and when it does not. It would seem however that when the consequences of an injury are peculiar to the circumstances and condition of the injured party, the law could not imply the damage simply from the act causing the injury. If it be true that the law implies a loss of time from the act complained of, it does not seem quite fair and just, when the sole object of the rule that requires special damage to be averred is to advise the defendant of the claim, to carry the implication so far as to imply also all the special consequences of such loss of time, when such consequences must depend on the peculiar circumstances of the plaintiff at the time of and previous to the injury, as that he was actually engaged in some special business which was at the time yielding a pecuniary profit. If this is so it would be as well to abolish the distinction between general and special damage.

In the recent case of Taylor v. Town of Monroe, before referred to, we held that the plaintiff could not, without an appropriate averment in the declaration, offer evidence to enhance her damages by proving the loss of earnings as a button maker in a button shop.

The declaration in that case, as in this, simply averred that the plaintiff was "prevented from attending to her ordinary business," which we held could only be construed as characterizing the injury and indicating its extent in a general way,

Tomlinson v. Town of Derby.

and that it did not lay the foundation for proof of special damage.

In that case the finding as to the nature of the business, and as to the use which the court made of the evidence, was much more explicit than in the present case; but we do not well see how that case can be distinguished in principle from this, and the decision there announced must control this case. A new trial is advised.

In this opinion the other judges concurred.

[The cases of the New Haven term will be continued in the next volume]

SUPPLEMENT.

CHARLES B. WILLIAMS vs. BELINDA M. KING.

The Connecticut statute of 1872, which gives a right of action against a mar-
ried woman upon any contract made by her upon her personal credit, for the
benefit of herself, her family, or her separate or joint estate, merely changed
the form of the remedy upon the liabilities of a married woman and did not
create any new liability. It authorized an action at law upon the same cause
of action that she would have been liable upon in equity.
The statute therefore applies to pre-existing contracts.
The separate estate of a married woman will in equity be held liable for all the
debts which she expressly or by implication charges thereon. It will thus be
charged by implication with the payment of debts contracted for the benefit
of the estate, or for her own personal benefit and upon her personal credit.
It is to be presumed, in the absence of evidence to the contrary, that a contract
entered into by a married woman having a separate estate, for its benefit or
for her exclusive benefit, was contracted upon the credit of her estate.

A note was given by a married woman for the purchase price of stocks which
she had herself bought. Held to be a debt contracted for the benefit of her
estate.

The personal property of a married woman, which is by the statute vested in the husband as her trustee, is not her sole and separate estate, and is not bound by the wife's contracts.

But if the husband transfers such property to the wife, or relinquishes his rights with regard to it, it becomes the sole and separate estate of the wife, even if no words of exclusiveness are used.

He

may still be her trustee under the general rules of equity, to preserve the title to the property, but not under the statute.

Merely permitting the title to stocks or bonds to remain in the name of the wife, or permitting her to collect interest or dividends, without any other circumstances to indicate an intention to give up the trust, would not be sufficient to establish a relinquishment of the trust; but if in addition to this he should permit the wife to manage the property as her own, to sell it and invest the proceeds in her own name, or if, the stock standing in his name, he should transfer it to her, taking a certificate in her name, these acts would furnish satisfactory evidence of his intention to relinquish all his claim to the property. Where a husband subscribed for stock in the name of his wife and as her attorney, it was held to be an unequivocal act, indicating his intention that the stock should be held by her for her sole use.

Whether, under the statute, real estate conveyed to a married woman, without words indicating an intention that it should be held for her sole use, is to be considered as her sole and separate estate: Quære.

VOL. XLIII.-72

43 569 60 481

Williams v. King.

ASSUMPSIT upon a promissory note executed by the defendant, a married woman; brought to the Circuit Court of the United States for the District of Connecticut, and heard before Shipman, District Judge, at the September Term, 1875, upon the general issue closed to the court. The case is fully stated in the opinion.

A. P. Hyde, for the plaintiff.

J. S. Beach and E. W. Seymour, for the defendant.

SHIPMAN, J. This is an action of assumpsit against a married woman to recover the amount of a negotiable promissory note for the sum of $2,500, made and signed by her alone, dated December 17th, 1868, and payable eighteen months after its date to the order of William C. Hurd, and by him endorsed to the plaintiff. The defendant executed this note in consideration of the sale to her, by the payee, of certain shares of the corporation known as The Silex Lead Company. The case was tried by the court upon the following agreed statement of facts.

The defendant was married November 2d, 1864, to 0. B. King of Watertown, Connecticut, with whom she has ever since lived as his wife. She executed the note in question at said Watertown upon the day of its date, to wit, December 17th, 1868, for the consideration stated in the declaration. At the time of her marriage she was possessed of property, real and personal, exceeding in the aggregate twenty thousand dollars. A portion of the personal property consisted of stocks in sundry incorporated companies, some of which stocks have been sold since her marriage, and re-investments made of the avails thereof in other stocks both before and since the execution of said note, which re-investments have not diminished the value of the property owned by her at the time of her marriage. In making these re-investments, the shares of stocks purchased or subscribed for have been issued to the wife in her own name, and the subscriptions thereof when made were made by her husband acting as her attorney. None