Derragon v. Vill. of Rutland

• Decision Date: 13 March 1886
• Citation: 58 Vt. 128,3 A. 332
• Parties: DERRAGON v. VILLAGE OF RUTLAND.
• Court: Vermont Supreme Court

3 A. 332

58 Vt. 128

DERRAGON

v. VILLAGE OF RUTLAND.¹

SUPREME COURT OF VERMONT.

Filed March 13, 1886.

Exceptions from county court, Rutland county.

This was an action on the case, in two counts, for negligently permitting the overflow of sewerage on the land adjoining the plaintiff's, whereby plaintiff and his property were damaged. The declaration in the first count declared, after setting out the authority and duty and votes, pertaining to the subject, of the defendant, that it "did, to-wit, on the—— day of——, A. D. 1872," construct a certain sewer near the dwelling-house of the plaintiff, and so negligently kept the same in repair that the contents were emptied in and upon land near the plaintiffs said dwelling-house, doing him and his family great damage. The second count alleged negligence in constructing said sewer, whereby like damage followed. Plea, general issue, and trial by jury, VEAZEY, J., presiding, Rutland county court, September term, 1885.

The evidence showed that there were two sewers near the plaintiff's land, one built in 1872, and one built in 1882; and the plaintiff's evidence tended to show that the damage that he had sustained from the overflow of sewerage was entirely from the sewer which was built in 1872. After the evidence, without objection on the part of the defendant, was all in, the defendant moved the court to direct a verdict for the defendant,—having made no such claim before,—for the following reasons: (1) Because there is a material variance between the declaration and the evidence, in this: that the declaration alleges as a cause of action, damages caused by the negligent construction and failure to repair a village sewer, built, under a vote of the village, in 1872, while the proof is wholly directed to the sewer built in 1882, and no evidence has been introduced tending to show damages arising from the sewer built in 1872. (2) Because there is no evidence to be submitted to the jury entitling plaintiff to recover; it appearing from the uncontradicted proofs that the sewer in question was wholly within the limits of the streets, no part of the sewer being upon plaintiffs land, and no sewerage being at any time discharged upon plaintiff's land, but the whole being located and constructed within the limits of the jurisdiction of the village, and under its charter powers, and the alleged injury being only such damage as is incidental to or consequential upon the exercise of the lawful powers of the village. After the defendant's motion to direct a verdict the plaintiff asked leave to amend his declaration, which leave the court granted upon terms, and that the cause be continued, it appearing that the defendant had prepared its defense wholly with reference to its liability under the allegations in the declaration in respect to the sewer built in 1872; but upon request of plaintiff said leave to amend was withdrawn, and the motion of the defendant was sustained upon both grounds pro forma, and the motion of the plaintiff, which was then made, for leave to amend the declaration, was pro forma, as a matter of law, denied, and a verdict was directed for the defendant, to which the plaintiff excepted.

Redington & Butler, for plaintiff.

The exceptions show that the plaintiff's motion for leave to amend the declaration was, pro forma, as a matter of law, denied. Surely this was error. R. L. Vt. § 907; Myers v. Lyon, 51 Vt. 272; Merritt v. Closson, 36 Vt. 174; Hosford v. New York Cent. & H. R. R. Co., 47 Vt. 533; Stanton v. Haverhill Bridge, Id. 172; Bates v. Cilley, Id. 1; Bowman v. Stowell, 21 Vt. 314; Lewis v. Locke, 41 Vt. 14; and cases in Vt. Digest, 27, 28; Russell v. Conn, 20 N. Y. 81. The objection of variance was not taken soon enough. It should have been taken when the evidence was offered. It cannot be taken advantage of after the evidence is closed. Roberts v. Graham, 6 Wall. 578. See Ammel v. Noonar, 50 Vt. 405. Yet no fatal variance appears in the case. Courts are now disposed to abolish the requirements that once existed on the subject of variances. Allen v. Jarvis, 20 Conn. 47. A party is not bound to prove immaterial averments. Little v. Blunt, 16 Pick. 359. But there was no fatal variance. The distinction is between matter of mere allegation and matter of description. Gates v. Bowker, 18 Vt. 23, 26; Steele v. Bates, 2 Aiken, 338; Harper v. City of Milwaukee, 30 Wis. 365. No record proof was vouched here that the sewer was built in 1872; hence no fatal variance. Henry v. Tilson, 17 Vt. 479; McDaniels v. Bucklin, 13 Vt. 279. In an action on the case for damages occasioned by a dam, alleged under a videlicet to be in the same county where the action was brought, but proved to be in another county, no fatal variance. Thompson v. Crocker, 9 Pick. 59; Briggs v. Richmond, 10 Pick. 391. See, also, Perry v. Botsford, 5 Pick. 189; Little v. Blunt. 16 Pick. 365; Henry v. Henry. 1 D. Chip. 265. If there be any allegation which may be stricken out without impairing the legal cause of action, such need not be proved, being surplusage. 1 Smith, Lead. Cas. 741, 755. The statement of time is immaterial. 1 Chit. PI. 384. In the case at bar both counts of declarations show the cause of action. It was the sickness and death of the son of the plaintiff, which occurred from the fault of the village in April and May, 1884; and the second count (page 14) specifies that the said sewer, "on the first day of April, 1884, did burst open," etc., whereby the damages occurred. The allegation as to when it was built was immaterial. See, as to variance, In re Kelly, 39 Conn. 159; Woodruff v. Westcott, 12 Conn. 138; Sage v. Hawley, 16 Conn. 110; House v. Metcalf, 27 Conn. 638; U. S. v. Le Baron, 4 Wall. 643.

F. G. Swinington and A. F. Walker, for defendant.

The allegation as to the time when the sewer was built, and authorized by vote of defendant to be built, is an essential and material matter of description. Time, here, is made material by the very nature of the averment itself. There being at least two sewers on Mineral street, one having been built several years later than the other, to allege the time when one was built is to describe and designate what sewer is complained of in respect to which the defendant is charged with negligence, and to apprise it of the nature of the evidence it would have to meet. Time, in this allegation, is descriptive of the legal identity of the subject of the action, which corresponds exactly with the further description of said sewer as being "near the said dwelling-house and lands of the said plaintiff." This distinguishes it from the other sewers on the same street. It is essentially descriptive of that subject-matter in respect to which the defendant is charged with a duty, and a breach thereof, and which it was necessary to prove on the trial before the defendant could be charged with liability. No allegation descriptive of the identity of that which is legally essential to the claim or charge can ever be rejected, but it must be proved precisely as set forth. If proved otherwise, it is a fatal variance; and if no proof at all is introduced in that respect, then it is fatal. A videlicet does not help it. Allen v. Goff, 13 Vt. 148; 1 Greenl. Ev. (14th Ed.) § 56; Starkie, Ev. (Sharswood's Ed.) 628-630; 1 Chit. Pl. 270; Ladue v. Ladue, 16 Vt. 189. But whether an allegation is essentially descriptive or not is to be determined by the county court, who have all the particular circumstances before them, and can best judge. It appearing to that court that the defendant would be prejudiced by an amendment, the ruling of the court below, therefore, is not reviewable here. 1 Greenl. Ev. § 57; Carpenter v. Gookin, 2 Vt. 495. To allow the amendment would be to change the cause of action. Carpenter v. Gookin, 2 Vt. 495; Brodek v. Hirschfleld, 57 Vt. 12; Dewey v. Nicholas, 44 Vt. 24. The ruling of the court should be sustained on the second ground of the defendant's motion, the record showing the facts on which it is based to be true. There being no negligence shown on the part of the defendant, or the breach of any duty by it owing to the plaintiff, and the damages or injury alleged, even if true, being wholly consequential upon the exercise of its lawful powers, there is no liability. 2 Dill. Man. Corp. § 1051; Winn v. Rutland, 52 Vt. 492. The plaintiff has no reason to complain or grounds for exceptions. The court below, exercising its discretion liberally, granted his motion, before verdict, to amend the terms. This was finally declined by the plaintiff. We think this court should refuse to reverse the judgment, and allow the plaintiff to do precisely what the county court offered to do, as was done in the case of Denison v. Tyson, 17 Vt. 549.

WALKER, J. At the close of the evidence the defendant moved the court to direct a verdict for the defendant—"First, because there is a material variance between the declaration and the evidence, in this: that the declaration alleges as a cause of action damages said to have been caused by a negligent construction and failure to repair a village sewer, built under a vote of the village in 1872, while the proofs are wholly directed to the sewer built in 1882, and no evidence has been introduced tending to show any liability, on the part of the village, in respect to the former Mineral-street sewer of 1872, or thereabouts, or any damages resulting from the same for which the village is responsible in any manner." Second, because there is no evidence to be submitted to the jury entitling the plaintiff to recover; it appearing from the uncontradicted proofs that the sewer in question is located and constructed wholly within the limits of the streets and jurisdiction of the defendant village under its charter powers, and no part of it upon the plaintiff's land, and that it did not discharge at any time sewage upon his lands, and the alleged injury being only such damage as is incidental to or consequential upon the...