Berg v. Humptulips Boom & River Imp. Co.

• Decision Date: 15 April 1905
• Citation: 38 Wash. 342,80 P. 528
• Court: Washington Supreme Court
• Parties: BERG v. HUMPTULIPS BOOM & RIVER IMP. CO.

80 P. 528

38 Wash. 342

BERG v. HUMPTULIPS BOOM & RIVER IMP. CO.

Supreme Court of Washington

April 15, 1905

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by S. O. Berg against the Humptulips Boom & River Improvement Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. H Parker and John C. Hogan, for appellant.

Ben Sheeks and E. H. Fox, for respondent.

PER CURIAM.

This action was brought to recover damages to real and personal property, caused by flooding. The allegation of the complaint in relation to the damages sustained is as follows: That during the month of December, 1902, and the month of January, 1903, the defendant's boom obstructed the Humptulips river, and caused the waters thereof to back up and overflow the plaintiff's lands and premises, 'whereby plaintiff's said land was and is damaged, his hay destroyed, his live stock, to wit, neat cattle, injured, his dwelling house flooded and furniture therein damaged, his lumber and other property floated off and destroyed; in all to plaintiff's damage in the sum of $2,000.' The defendant moved to make this complaint more definite and certain by stating the nature of the damage to the real property, and the amount thereof, the quantity of hay destroyed, and the value thereof, and, generally, by stating the different classes of personal property injured, and the particular injury thereto, and a description of the property destroyed, and the value thereof. The court denied the motion, and the ruling is assigned as error. The defendant then answered, denying the material allegations of the complaint, and alleging affirmatively that the real property described in the complaint was the community property of the plaintiff and his wife, and that the wife was a necessary party to the action. The affirmative matter in the answer was denied in the reply. When the case was called for trial, the plaintiff withdrew all claims for damages to the realty, but did not amend, or offer to amend, his complaint. The defendant thereupon objected to the introduction of any testimony under the complaint, for the reason that it did not state sufficient facts. This objection was overruled. The plaintiff offered evidence as to the loss of a floating dock and house thereon, used for a boat landing, to which the defendant objected, as it was a part of the realty, and the objection was overruled. Under the allegation of the complaint as to injury to cattle, the following testimony was received, over the objection of the defendant 'Q. You say you had no hay to feed them? A. Yes, sir; I have not any hay, and I have to sell them. Q. How much do you estimate you were damaged on your cattle? A. I think about $400. Q. You think if the flood had not come you would have made that out of them? A. Yes, sir; I would have made more than that out of them if the flood had not have come. Q. You claim you were damaged $400 because of this water to your stock? A. Yes; I don't would have it for $400; I never like to do it over again. Q. That is for the cattle? A. Yes sir. Q. Now, you say that the reason that you sold the stock was that you did not have money to buy hay to feed them with your hay being spoiled? A. Yes, sir. Q. That is the only reason? A. Yes, sir.' The plaintiff had judgment below, and the defendant appeals.

The first assignment of error is based on the ruling of the court denying the motion to make the complaint more definite and certain. Ordinarily motions of this kind are addressed to the sound discretion of the trial court, and an appellate court will not review the ruling unless an abuse of discretion is shown. Inasmuch as this judgment must be reversed on other grounds, we will express our views in regard to this ruling as the pleadings may be amended after the case is remained. Our statute provides that the complaint shall...