Beauton v. Connecticut Light & Power Co.

• Decision Date: 07 December 1938
• Citation: 3 A.2d 315,125 Conn. 76
• Parties: BEAUTON v. CONNECTICUT LIGHT & POWER CO. DRAPEAU v. SAME.
• Court: Connecticut Supreme Court

3 A.2d 315

125 Conn. 76

BEAUTON v. CONNECTICUT LIGHT & POWER CO.

DRAPEAU v. SAME.

Supreme Court of Errors of Connecticut.

December 7, 1938

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Actions by John M. Beauton and Jennie Drapeau against the Connecticut Light & Power Company for property damage resulting from the alleged negligent construction and operation of a dam brought to the superior court, where demurrers to the second and third special defenses were overruled and the issues were tried to the jury.From a verdict and judgment for the defendant in each case, plaintiffs appeal.

No error.

J. Warren Upson, of Waterbury, for appellants.

Walter F. Torrance, of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

These two cases were tried together before the jury and verdicts rendered in favor of the defendant in both cases, from which the plaintiffs have appealed.The plaintiffs set forth in their complaints and at the trial offered evidence which they claimed proved these facts: The plaintiffs were owners of cottages in a development known as Under the Rock Park situated upon the Housatonic River about a mile below the Stevenson Dam of the defendant.On the morning of March 12, 1936, their cottages were swept away and destroyed, as they claimed, by reason of the negligence of the defendant in the construction and operation of the dam.They claimed that there was a freshet in the river at that time due to heavy rains and melting snow, and that the defendant, by reason of the manner in which it operated the flood gates in the dam and also because of flashboards which it placed upon the top of the concrete structure, caused an unusual amount of water to be suddenly released, whereby the valley below was flooded and the plaintiffs' houses swept away.They claimed also that the defendant was further negligent in allowing cribwork used in the construction to remain in the bed of the river near the foot of the dam; and that this cribwork was washed down the river by the flow of water and contributed to cause the destruction of their cottages.In the complaints these facts were set up at length in two counts, one based on the theory of negligence and the other on nuisance.

The defendant denied that it was negligent or guilty of a nuisance in any respect in either the construction or operation of the dam; and in a special defense set up that the damage to the plaintiffs' houses was wholly caused by an act of God-an unprecedented flood upon the river due to unusually heavy rains and warm weather causing the snow to melt rapidly, whereby an amount of water came into the river much greater than any theretofore known.In a separate special defense the Statute of Limitations, Gen.St.1930, § 6029, was pleaded.

The assignments of error which are pursued by the plaintiffs in their briefs concern a ruling of the court in refusing to permit the plaintiffs to amend their complaints during the course of the trial, and the instructions of the court in regard to the effect of an act of God, in regard to the effect of the Statute of Limitations upon claims for damage to personal property, and in defining the duty of the defendant in the maintenance and operation of the dam.

In the course of the trial it appeared that there were flashboards erected upon the concrete top of the dam three feet in height and that no certificate approving the erection of such flashboards appeared upon the land records of either of the towns in which the dam was located.The plaintiffs on the second day of the trial offered an amendment which alleged in substance that the defendant was subject to the provisions of Chapter 180 of the General Statutes, § 3001 et seq., and that it altered and added to the Stevenson Dam without obtaining the approval of the state board of civil engineers and without filing certificates of such approval in the offices of the proper town clerks, as required by the statute.The court on the day following permitted the plaintiffs to amend by alleging that the flashboards constituted a nuisance and negligence on the part of the defendant, but denied that part of the amendment which alleged that the flashboards were illegally placed on the dam.The appellants assign error in this ruling.

It appeared that the dam was built in 1919 by the J. A. P. Crisfield Contracting Company, an independent contractor, and shortly after the dam's completion flashboards were installed and have been maintained ever since.Counsel for the defendant stated that to disprove the allegations of the amendment it would have been necessary for the defendant to have produced evidence from its own files or those of the Crisfield Company or from witnesses that the plans, specifications and other data for the flashboards had been submitted to a member of the board of civil engineers and had been approved by him and a certificate issued in accordance with the statute, or that it had been determined by him that such an approval was not necessary; and that the Crisfield Company had ceased to function after completion of the dam in 1919 and its engineer who certified to the maps and plans used in connection therewith was in parts unknown.These statements were not controverted.To have required the defendant to meet this issue, raised in the course of the trial upon such short notice, would have imposed upon it a burden practically impossible to have been met.In Clayton v. Clayton,115 Conn. 683, 686, 163 A. 458, 459, we said, " An amendment of the pleadings, when the case is on trial, and the evidence partly in, is never a matter of absolute right.'Much must necessarily be left to the sound discretion of the court, and its action is reviewable only in the case of abuse.'We cannot say that the trial court abused its discretion in refusing to allow the plaintiffs to amend at that stage of the trial.

As the amendment to the complaint was not allowed, it follows that the assignments of error based upon the failure of the court to charge that the construction of the flashboards was negligence as a matter of law are without force.There is no allegation in the complaint to that effect.The appellant cannot predicate reversible error upon the failure of the court to charge the jury upon a matter not in issue.Swift & Co. v. Lundin,98 Conn. 78, 80, 118 A. 444;Raymond v. Bailey,98 Conn. 201, 211, 118 A. 915.The court properly left it to the jury to determine as a matter of fact whether the defendant was negligent in erecting the flashboards.

The appellants claim that the court erred in not instructing the jury that an act of God could not constitute a...