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said James Lea Kennedy, then and there a LORE, C. J. The third count comes directminor under the age of fourteen years and ly within the decision in the case of Clark v. a half, to the knowledge of said defendant, Diamond State Steel Company, 2 Pennewill, was employed by said defendant in a certain 522, 47 Atl. 1014. We sustain the demurrer room in its said factory, known as the 'fin- to the third count, because the narr. does not ishing room, and that the said defendant specify in what respect the defendant omitthen and there negligently and carelessly, in ted to provide for the repair or keeping in reviolation of law, employed the said James pair of the machine. Lea Kennedy in a place unsafe and danger-ous to the life and limb of him, the said
Mr. Melson: That will apply also to No. 6. James Lea Kennedy, to wit, at, near, or on LORE, C. J. The demurrer as to No. 3 and a certain machine known as a 'calender,' No. 6 is sustained. and the appliances connected thereto, they
Mr. Hilles: The fourth count alleges “that heing then and there uncovered, unprotected, and moved by steam power, and thereby and
the defendant negligently and carelessly omitby means of the premises the said James
ted to provide for a certain machine in the Lea Kennedy, who was then and there in
said factory, known as a 'calender,' sufficient the exercise of due care and caution on his
tools, instrumentalities, and proper guards part, to wit, on the day and year aforesaid,
for the protection of the said James Lea at New Castle county aforesaid, was caught,
Kennedy, working thereon, whereby the said bruised, mangled, and instantly killed by said
James Lea Kennedy, who then and there, to machine and appliances,” etc.
wit, on the 25th day of October, 1901, at New The demurrers to the first count were as
Castle county aforesaid, in the exercise of follows: “(1) That the said count is uncer.
due care and caution on his part, was so tain and indefinite. (2) That there is no con
greatly bruised and injured that he afternection between the alleged negligence of
wards, to wit, on the same day, died, of and the defendant and the injury to James Lea
from the bruises and injuries so received as Kennedy set forth in said count. (3) That
aforesaid,” through the negligence of the it does not appear from the said count in
said defendant, etc. My demurrers to that what particular said defendant has violated
count are: (1) It does not appear therefrom any law of the state of Delaware. (4) It
what tools, instrumentalities, or proper guards does not appear therefrom what appliarces
should have been placed on the said calender; were uncovered or unprotected."
(2) there is no connection between the allega
tion of negligence in the said count and the Mr. Hilles: My cause of demurrer to that
injury to the said James Lea Kennedy. count is that it is uncertain and indefinite. LORE, C. J. That count does not state LORE, C. J. We think that the first count
what the defendant omitted to provide that is sufficient. It avers that the deceased was
he should have provided. The narr. must employed at the place or machine known as
give the defendant reasonable notice of what
he is to meet. We sustain the demurrer to a “calender,” with the appliances connected therewith, which was dangerous to life, be
No. 4. ing then and there uncovered, unprotected, Mr. Hilles: The fifth count alleges that and moved by steam power, and that by
the said plaintiff "was in the said factory, at, means of the premises said James Lea Ken
near, or on one certain machine of the said nedy was caught, bruised, mangled, and in
defendant; that the said defendant then and stantly killed by the said machine and the
there knew, or by the exercise of due care appliances. We overrule the demurrer as to
and caution should have known, of said that count
James Lea Kennedy's said situation and posiMr. Hilles: I will ask leave to plead to that
tion, yet the said defendant, in disregard of count. Now we come to the third count,
its duty to him in that behalf, negligently which states, as to the calender, that "the
and carelessly started or put in motion the said defendant negligently and carelessly
said machine, without giving proper notice suffered and permitted a certain calender to
or warning to the said James Lea Kennedy, be out of order and repair, whereby the said
whereby the said James Lea Kennedy, who James Lea Kennedy, who was then and there
was then and there in the exercise of due engaged in his occupation as aforesaid, and
care and caution on his part, to wit, on the at work upon the said calender, in the exer
day and year aforesaid, at New Castle councise of due care and caution on his part, was,
ty aforesaid, was thereby crushed and killby reason of said calender so being out of
ed," etc. Our demurrers to that count are order and repair as aforesaid, thereby great
(1) that the said count is uncertain. (2) It ly injured, and
by means of the
does not appear therefrom what duty, if any, premises instantly killed," etc. The defend
the defendant owed to the said James Lea ant is not informed by that count whether
Kennedy as to giving notice of the starting the deceased was hurt with the same cal.
of the said machine. ender that was out of order, nor is it alleged LORE, C. J. That count is insufficient, bein what particular it was out of order and cause it does not designate any particular repair,
machine. The declaration must notify the defendant of what he is to meet. We sus- tent unjustly to vex and trouble the plaintiff, tain the demurrers to the fifth count.
and had caused him a loss of $150. The first
paragraph of the answer denied the allegaMr. Hilles: The seventh count is similar
tions contained in paragraphs 2, 3, and 4 of to the sixth-not stating the name of the
the complaint; and the remaining paragraphs machine.
of the answer (2, 3, 4, 5, 6, 7, 8) set up, in LORE, C. J. We have just ruled upon substance, the following facts: (2) The dethat. It must specify the machine. We over- fendants were selectmen of Waterbury durrule the demurrer to the first count, and sus- ing the year ending October 1, 1900; (3) the tain the demurrers to the third, fourth, fifth, town of Waterbury is in the probate district sixth, and seventh counts.
of Waterbury; (4 and 5) during the year last
aforesaid the plaintiff resided and had his At the election of the plaintiff's counsel, domicile and had a large amount of property judgment of respondeat ouster was entered, in said town of Waterbury; (6) "all of the leave being given defendant to amend.
acts alleged in paragraph 1 of the complaint were done by the defendants, acting as se
lectmen as aforesaid, pursuant to the law of (75 Conn. 637)
this state in such case made and provided"; FRISBIE V. MORRIS et al.
17 and 8) on July 14, 1900, the court of pro (Supreme Court of Errors of Connecticut. June bate aforesaid appointed a conservator over 4, 1903.)
the plaintiff, on the application set forth in MALICIOUS PROSECUTION-APPOINTMENT OF the complaint, and no appeal has been taken CONSERVATOR-OUTSTANDING JUDGMENT -PROBABLE CAUSE.
from said appointment. 1. Gen. St. 1902, § 1105, provides that, if one
The plaintiff demurred on the following shall commence a suit against another without grounds: (1) “The fact that the defendants probable cause and with malicious intent, he acted in the capacity of selectmen of the town shall suffer treble damages. Held, that the fact that the judgment of a probate court appointing
of Waterbury does not constitute a legal jusa conservator for plaintiff was outstanding and tification or excuse for the commission of the unappealed from was conclusive against him acts alleged in the plaintiff's complaint; (2) in his action under the statute against the
the laws therein referred to do not authorize selectmen for instituting the proceedings, since it showed probable cause.
or justify a complaint made with malicious
intent unjustly to vex and trouble the person Appeal from Superior Court, New Haven
complained of.” To the other paragraphs of County; Milton A, Shumway, Judge.
the answer, setting up new matter, the plainAction, for the malicious prosecution of a
tiff made no reply. The court overruled the civil suit, by Walter L. Frisbie against Perry
demurrer. The plaintiff then, by consent, C. Morris and others. Judgment for defend
filed a reply in which he admitted the truth ants, and plaintiff appeals. Affirmed.
of all the new matter set up in the answer, Wilson H. Pierce and Percy S. Bryant, for except that contained in paragraph 6, as to appellant. Lucien F. Burpee and Terrence which he alleged that he had "no knowledge F. Carmody, for appellees.
or information sufficient to form a belief,"
and left the defendants to their proof. TORRANCE, C. J. The statute (Gen. St. As soon as this reply was filed, the defend1902, § 1105) provides, in substance, that if ants, in writing, made a motion for judgment any person shall commence and prosecute any in their favor, “based on the allegations of suit or complaint against another "without the plaintiff in his complaint, and his admisprobable cause, and with a malicious intent sions contained in his reply" to the answer. to unjustly vex and trouble him, he shall pay The court granted the motion, and rendered him treble damages." This statute appears judgment for the defendants. to have been first enacted in 1672 (Revision The reasons of appeal are based solely upon of 1808, p. 671, tit. 167), and it has, with the action of the trial court in overruling the some changes in phraseology, formed part of demurrer and in granting the motion. our law ever since. The present action is An action brought under our statute for the brought upon this statute. The complaint | malicious prosecution of a civil suit "is subsets forth, in paragraph 1, the following facts: ject to the same general principles as are
“On July 2, 1900, the defendants brought actions on the case, for malicious prosecutions an application against the plaintiff to the pro- at common law." Goodspeed v. East Had. bate court for the district of Waterbury, dam Bank, 22 Conn. 530, 535, 58 Am. Dec. claiming the appointment of a conservator 439. In actions for malicious prosecutions over the plaintiff, and caused said application and in actions under our statute for vexatious to be served upon him, returnable to said pro- suit, two of the essential allegations are (1) bate court on the 14th day of July, 1900, and that no probable cause existed for instituton said day prosecuted said application ing the prosecution or suit complained of; against the plaintiff.”
and (2) that such prosecution or suit termiThe remaining paragraphs of the complaint | nated in some way favorably to the defend(2, 3, 4) allege, in substance, that said appli- | ant therein. 1 Swift's Digest, pp. 491, 494, cation was commenced and prosecuted with. | 647; Munson v. Wickwire, 21 Conn. 513, 515; out probable ca'use, and with a malicious in- Wall v. Toomey, 52 Conn. 35; Thompson . Beacon Valley Rubber Co., 56 Conn. 493, 16 could be flowed by said dam as then constructed, Atl. 554. So long as the prosecution claimed
and the right to divert in pipes from said dam
"all the water needed to supply any useful deto be malicious, or the suit claimed to be
mand," and an award of $300 for rights grantvexatious, is pending, “it cannot be known ed and damages caused by reason of the conbut that the party will be convicted upon tinuance of the dam and flowage of water, and it, or that it was commenced and carried on
of $300 for damages past and future by reason
of the diversion of water "for all purposes for from motives of malice, without probable which defendant could use said water," covered cause." 1 Swift's Digest, p. 491. In both all future damages resulting from the diversion actions, if it appears that probable cause ex
of the water by reason of the maintenance of
the dam at its then height or at a greater isted, the defendant will prevail, even though
height. it also appear that he instituted the proceeding complained of maliciously. “Let there be
Appeal from Superior Court, New Haven ever so much malice, if there was probable
County; John M. Thayer, Judge. cause, the prosecution was justifiable.” 1
Action by John King against the Fountain Swift's Digest, pp. 491, 492; Thompson v.
Water Company for damages for diverting Beacon Valley Rubber Co., 56 Conn. 493, 16
the water of a stream to the injury of the Atl. 554. “For maliciously prosecuting a
plaintiff's mill privilege, and for fouling the good cause of action in the manner provided
stream. Judgment for the plaintiff upon the by law, there is no remedy, be
first and second counts of the complaint, and cause there is no wrong." Johnson v. Reed,
appeal by the defendant for alleged errors 136 Mass. 421, 423. Moreover, if in the ac
in the rulings and judgment. Error in judg. tion for malicious prosecution or for vexa
ment upon first count. No error in judgment tious suit it appears that the prosecution
upon second count. properly ended in a judgment of conviction, William H. Williams, for appellant. Veror that in the civil suit judgment was prop- renice Munger and Robert L. Munger, for erly rendered against the defendant therein, appellee. such outstanding judgment is, as a general rule, conclusive evidence of the existence of HALL, J. The defendant company was probable cause for instituting the prosecution duly incorporated, prior to 1872, for the puror the suit. “The conviction of the plaintiff pose, among other things, of furnishing the is justly considered as conclusive evidence inhabitants of West Ansonia with an abunof probable cause." Carpenter, J., in Brown dant supply of pure water and ice for public v. Randall, 36 Conn. 56, 63, 4 Am. Rep. 35; and domestic use. For this purpose, in July, Monroe v. Maples, 1 Root, 553; Goodrich v. 1872, the defendant constructed a dam and Warner, 21 Conn. 432, 443; 19 Amer. & Eng. reservoir across a stream which contributed Ency. of Law (2d Ed.) pp. 667, 668, and cases to the supply of a water power and mill cited.
privilege below, and laid pipes in the streets Applying the foregoing principles to the of West Ansonia for the diversion and discase at bar, we think the trial court commit- tribution of the water of said stream. In ted no error in overruling the demurrer, and December, 1872, the plaintiff, who owned the in rendering judgment upon the motion. Up- land above the defendant's dam, and the on the pleadings as they stood when the de- owners of the mill and mill privilege below murrer was overruled, and when the motion (of whom the plaintiff, now the sole owner was granted, it conclusively appeared from thereof, was one) and the defendant comthe record that the proceeding of which the pany, executed a written instrument, by plaintiff complained had terminated in a valid which, after reciting that in pursuance of outstanding judgment against him. It thus, the object of its incorporation the defendant in effect, conclusively appeared from the rec- had constructed said dam, and that it would ord that at least probable cause existed for set back the waters of said stream upon the the action of the selectmen of which the plaintiff's land, and that the defendant had plaintiff complained, ind therefore that the "laid pipes in the highways and streets" for plaintiff had no cause of action.
conducting water, and that the water of There is no error. The other Judges con- said stream, "when permitted to flow through curring.
said pipes for distribution," would, "to the extent the same shall flow through said pipes,
be diverted from said stream," to the injury (75 Conn. 621)
of the water power below, the said parties, KING v. FOUNTAIN WATER CO.
for the purpose of determining the matters in (Supreme Court of Errors of Connecticut. June controversy between them and ascertaining 4, 1903.)
the damages, as stated in the words of the ARBITRATION-SUBMISSION AND AWARD-CON- submission, "for all trespasses and injuries STRUCTION-DAMAGES COVERED,
that are proved, and for injury that may oc1. A submission providing for a determination of damages resulting or which might result
cur hereafter, by the flowing of the land of to plaintiff by reason of the maintenance of a said John King, and all damage that may dam by defendant, thus forcing back water on occur to said proprietors of said sawmill plaintiff's land above the dam, and diverting water from his mill below the dam, and giving
and land below said dam by reason of said defendant a perpetual right to set back water
diversion of water hereafter," mutually on plaintiff's land to the extent that the same agreed in part as follows: "Said Fountain Water Company, its successors and assigns, sons of the year, flowed over the dam, and shall forever hereafter have the right to dam to the plaintiff's mill, and had been useful and set back the water on the land of said to the plaintiff's mill privilege. The deprivJohu King to the extent the same can be ing the plaintiff of the use of the water so flowed by said dam as now constructed." held back and ponded by the raising of the "Said water company shall forever hereafter dam is the injury described in the first count have the right to divert in said water pipes, of the complaint, and for which the trial or others to be laid from said dam, all the court awarded damages to the plaintiff. water that it shall need to supply any useful This judgment is apparently based upon demand they may have on the line of their the conclusion that by the terms of the writpresent water pipes, or whatever water pipes ten agreement of submission and award may be laid in extension or continuance of thereunder the quantity of water which the the water pipes." "All question of damages, defendant may divert from the mill privilege compensation, or pay to any of said parties below is not to be measured by the needs of
for any and all acts, past, present, the company in order to supply the proper and future, and for all rights herein given demand of the public, but by the height of and granted, are hereby left to the final ar- the dam as originally constructed. Such is bitrament, award, and determination of (nam- not the correct construction of the language ing three persons]." In accordance with the of these instruments. It is true that the conterms of such submission, the arbitrators templated injury by the flooding of the land named awarded to the plaintiff $300, which, above the dam was, by the terms of the subin the language of the written award, was mission and award, clearly described as that "for all rights and privileges granted by which would result from the use of the then John King to the Fountain Water Company, existing dam. As such injury would necesand in consideration of all damages past, sarily be increased by any raising of the caused by any workmen, agents, and con- dam, its height would naturally be limited tractors, and for all damages that will here- by the language of the submission and award. after occur to said John King on the land of But the contemplated injury to the owners of said King, near said dam, by the continuance the water power below was the diversion of of said dam, and the flowage of water over the water of the stream so that it would not the land of said King"; and awarded to the flow to their sawmill, and nowhere, either in owners of said mill and mill privilege $300 the submission or award, do we find any for damages, as described in the award, "that statement or claim that the quantity of wawill hereafter occur or which have occurred" ter which would be so diverted or the extent to said named owners "by reason of the di- of the injury which they would suffer, would version of the water of the stream crossed by be affected by the height of the dam, or any said dam, through the pipes of said Water language showing any intention upon the part Company for all purposes for which said Wa- of such owners in making the submission, or ter Company can use said water." The terms of the arbitrators in making the award, that of said award were complied with by said the dam was to be limited to its height at parties. When the dam was constructed it that time. We should expect to find no such was supposed by all parties that the reser- limitation, if the real purpose of the agree. voir thus formed was large enough to furnish ment of submission, as between the owners and store a sufficient supply of water for the of the mill privilege and the defendant, was defendant's purposes; but, as the demand for to enable the latter to use the entire stream water increased with the growth of the town, if required for its purposes; since, if the dethe capacity of the reservoir and the flow of fendant was to have the right to divert, if the stream proved to be insufficient, and in necessary, the entire stream, it could make 1879, and again in 1888, in order to supply no difference to the owners below whether it the useful demand for water by the inhabit- did so by raising the dam or by some other ants of said town, it became necessary for
The language of the recital of the the defendant to increase the capacity of the agreement of submission describing the conreservoir by raising the height of the dam, templated injury to the mill owners as that so that the water of the stream, which, at which would result to their water power by certain seasons of the year, had flowed over the diversion of the water of the stream to the dam and to the plaintiff's mill, should be the extent that such water would flow through held back, and stored for the defendant's the conducting and distributing pipes laid in use. The dam was thus raised about eight the streets, the statement in the submission feet above its original height. While such that it was the purpose of the parties to raising of the dam flooded no land above, ex- have determined all damage that might occur cepting what was then owned by the defend-by reason of said diversion of water (no diant, and diverted no more water than was version having been before spoken of except necessary to supply the proper demands of that caused by the flow of the water through the people of the described district, it held the pipes laid in the streets), the provision back and stored for the defendant's use, a that the defendant should have the right to considerable quantity of water, which, after divert “in said water pipes" all the water it the construction of the original dam, and be- should need to supply any useful demand it fore such raising thereof, had, at certain sea- might have, and the words of the award that the sum to be paid to the mill owners was below in the manner it was on the occasion for damages that had occurred or would in question. thereafter occur to them "by reason of the Since judgment must be for the defendant diversion of the water of the stream crossed upon the first count, it is unnecessary to conby said dam through the pipes of said water sider the questions raised by the defendant's company for all purposes for which said wa- demurrer to that count. ter company can use said water," show suffi- The judgment upon the first count is errociently clearly that it was not the intention neous, and is reversed. There is no error in of the owners of the mill privilege below the the judgment upon the second count. The dam to limit the water which the defendant other judges concurred. might divert to the quantity which could be ponded or beld back by the dam as it was originally constructed, even though it may
(75 Conn. 633) then have been supposed by all parties to be
UNMACK V. DOUGLASS. sufficient for the present and future uses of SAME v. KILLAM CARRIAGE CO. the company. It cannot be claimed that the
(Supreme Court of Errors of Counecticut. June water to be diverted was intended to be lim
4, 1903.) ited to such quantity as would flow through
CONDITIONAL SALE-UNRECORDED CONTRACT the pipes which had been laid at the time -BANKRUPTCY-TRANSFER BY BANKRUPTof the award, as it is expressly provided in
VALIDITY-REPLEVIN-ACTION BY RECEIVER
IN BANKRUPTCY-DAMAGES AND COSTS, the submission that the defendant may divert
1. A contract providing for the delivery of the water by laying other pipes to the dam, personal property to one agreeing to pay a and by extending and continuing existing monthly rental therefor for a designated period, pipes, in order to supply any useful demand.
with the privilege of purchasing the same for a
nominal sum after the date of the last payment, From the language of the submission and of
is a conditional sale, within Gen. St. 1902, 88 the award, which was accepted and perform- 4864, 4865, providing that contracts for the ed by all the parties, read in the light of the
sale of personal property shall be in writing and
recorded, and that conditional sales not made known purposes for which the water com
in conformity with the statute shall be considpany was organized, and which it was en- ered absolute sales, except as between the deavoring to carry out, it is apparent that the
vendor and vendee. owners of the mill privilege agreed that the
2. Under the express provisions of Bankr.
Act 1898, § 67 (Act July 1, 1898, c. 541, 30 defendant should have the right to use all Stat. 564 (U. S. Comp. St. 1901, p. 3449]), the water of the stream in question which it transfers of property made by a bankrupt withmight need in order to furnish its customers
in four months of the commencement of the with an abundant supply of water and ice for
bankruptcy proceedings, with intent to defraud
his creditors, are void, "except as to purchasers public and domestic use, and that in accept- in good faith and for a present fair consideraing the sum awarded them they received tion." payment for all damage that might result to
3. A transfer of property by a bankrupt a few
weeks before the commencement of the bankthem from the necessary diversion by the
ruptcy proceedings against him, under au agreedefendant of the entire water of the stream. ment whereby the transferee assumes and As the defendant has only diverted such wa- agrees to pay the balance of the purchase price ter as was necessary for its lawful purposes,
of the property due from the bankrupt to his
vendor, is as valid as though the amount thus and as the manner of diverting it is a proper assumed by the transferee had been paid by one, causing the plaintiff no injury beyond him to the bankrupt in cash; and by the latter that for which he and his grantors have al
paid over to his vendor.
4. A sale by a bankrupt a few weeks before ready received compensation, he was not en
bankruptcy proceedings is not rendered void titled to damages upon the first count of the merely because it is on credit. complaint.
5. Where judgment in an action of replevin Upon the second count of the complaint brought by a receiver in bankruptcy with per
mission of the federal court is rendered for dethe trial court awarded the plaintiff $5 dam- fendant, damages and costs awarded against ages for an injury sustained by him from the plaintiff as receiver are properly included thereact of the defendant in discharging into the
in, so as to render the sureties on the receiver's stream and mill pond below the dam, by ble therefor.
recognizance given in the action personally liameans of a blow-off pipe at the bottom of the dam, foul and stagnant water which had
Appeal from Court of Common Pleas, New accumulated in the bottom of the defend
Haven County; Julius C. Cable, Judge. ant's reservoir. This judgment does not ap
Actions of replevin by William H. Unmack, pear to be erroneous. It may fairly be un
receiver in bankruptcy, against John W. derstood from the finding that the trial court
Douglass,' and by the same plaintiff against held that, while it was necessary, in order to
the Killam Carriage Company. From judgenable the defendant to furnish pure water
ments for defendants, plaintiff appeals. Af
firmed. to its customers, that the foul water which at times accumulated at the bottom of the James M. Sullivan, for appellant. Charles dam should in some way, and at the times S. Hamilton, for appellees. and in the quantities stated in the finding, be let off from the defendant's reservoir, yet BALDWIN, J. These two actions turn upit was not reasonably necessary that it should on the same questions of law, and may be be discharged into the stream and mill pond conveniently considered together,