Gent v. Cole ex rel. Cole

Alvey, J.,

delivered the opinion of the Court.

The verdict in this case being against the defendant, he moved in arrest of judgment, on the ground that the declaration did not disclose a sufficient cause of action. This motion was overruled by the Court below, and the first question presented on this appeal is5 was the motion in arrest properly overruled?

The declaration as originally filed, contained three counts, and, under leave to amend, a fourth was added. The first three counts were in case, and the last in trespass. This joinder of counts, in a case like the present, is allowable, by the law of Maryland, as decided in the case of Williams vs. Bramble, 2 Md., 313 .

All the counts in the declaration are certainly very defectively and inartificially drawn, and it would be difficult to sustain either of them on general demurrer. For, as observed by Mr. Justice Bullur, ([Dougl., 159,) it is one of the first principles of pleading, that facts shouldbe stated, “for the purpose of informing the Court, whose duty it is to declare the law arising upon those facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.” This essential and fundamental principle, which is incorporated into our simplified system of pleading, (Code, Art. 75, sec. 2,) has certainly been ignored in framing the counts in the present declaration. The statements of the tortious acts complained of, and of the manner by which they effected injury to the plaintiff, are altogether too general and indefinite to be good on demurrer.-

But the defendant, instead of demurring, pleaded over, and issue was joined thereon ; and such being the case, the principle is, that “where there is any defect, imperfection, or omission in any pleading, whether in substance *114 or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict.” 1 Wms. Saund., 228, n. (1;) Jackson vs. Pesked, 1 M. & S., 234 ; Merrick vs. Bank of the Metropolis, 8 Gill, 59 . The principle as here stated is also substantially, and almost literally incorporated into our simplified system ; (Code, Art. 75, sec. 9;) and as the defects in the several counts appear to be such as are curable by the verdict, it follows that the Court below was right in overruling the motion in arrest of the judgment.

The only other question presented, is that by the defendant’s defective bill of exception, which, by the agreement of the parties, we are asked to consider. This question is as to the admissibility of certain evidence offered by the plaintiff to reflect upon the quantum of damages which he supposed himself entitled to recover. The plaintiff was seventeen years of age at the time he entered the army, in 1864, as a substitute for the son of the defendant. He was at the time an apprentice to the defendant, and, of course owed him service until twenty-one years of age. He was not at liberty to enlist in the army against the consent of his master, and it is somewhat difficult to perceive upon what principle he can claim to recover of- the defendant the price of a substitute for the son, in this action. By entering the army he absolved himself from his apprenticeship, and ceased to owe service to the defendant, and, as a soldier of the United States, he became entitled to receive, and, as we must presume, did receive the regular pay of a soldier for the time of his service. In actions for personal injuries, such as this is supposed to be, the damages assessed are *115 for the pain inflicted, whether hodily or mental, and the expenses and loss of time and propertjr, which may have been the natural and proximate consequence of the wrong of the defendant. Here, it does not appear whether the plaintiff was wounded either in body or mind by his service in the army, and, as. the time of such service was embraced within the term of his apprenticeship, we are at a loss to understand how the price of substitutes,fixed and regulated by substitute brokers, could have furnished the jury with any proper criterion for assessing damages for any loss sustained by the plaintiff in respect of either time or property, for which he could claim to recover in this action. We think, therefore, that the Court below was in error in admitting the evidence of Colton as to the price of substitutes, and shall, consequently reverse the judgment, and award a new trial.

(Decided 22nd of May, 1873.)

Judgment reversed, and new trial awarded.