Hoskison v. Cent. Vt. R, Co.

• Decision Date: 25 August 1894
• Parties: HOSKISON v. CENTRAL VERMONT R, CO.
• Court: Vermont Supreme Court

30 A. 24

66 Vt. 618

HOSKISON

v. CENTRAL VERMONT R, CO.

Supreme Court of Vermont. Rutland.

August 25, 1894.

Exceptions from Rutland county court; Ross, Chief Judge.

Action by Robert Hoskison against the Central Vermont Railroad Company to recover damages for buildings destroyed by fire from engines of the defendant. Judgment for plaintiff. Defendant excepts. Affirmed.

The plaintiff claimed to recover for the destruction of his house, barns, and their contents. There was no direct evidence as to how the fire originated, but the testimony of the plaintiff tended to show that, soon after the passage of one of the defendant's freight trains, fire was discovered in the gable end of the barn nearest the tracks, from which it spread, and consumed the other buildings. The barn in question was 125 feet distant from the tracks, and its foundations were 25 feet above the level of the track. The description of the property in the declaration was as follows: "A certain dwelling house, sheds, and barns, together with the contents thereof, consisting of household furniture, family wearing apparel, provisions, fuel, farming utensils, hay, grain, and fodder—all of the value of $5,000." Upon the trial the plaintiff produced a schedule containing an itemized list of the various articles of property alleged to have been destroyed, with the value of each. The defendant insisted that under the general description in the declaration the plaintiff was not entitled to recover for any of the personal property, and objected to the admission of any and all evidence relating to the loss or value of the articles of personal property mentioned in the schedule, or of any personal property alleged to have destroyed. The court overruled the objection, and admitted evidence of the loss of the various articles of personal property mentioned in the schedule, with their respective values, to which the defendant excepted. The plaintiff testified in chief that he had lost, by the fire in question, the articles of property mentioned in said schedule, and that the values carried out in said schedule were the correct values. There was no other testimony as to the loss or value of the personal property, except that of the plaintiff The schedule was admitted, not as independent evidence, but in connection with the testimony of the plaintiff. Upon cross-examination the plaintiff testified that said schedule was made soon after the fire, by himself and his wife; that he himself had no personal knowledge in respect of many items therein contained, such as family wearing apparel, household supplies, and minor articles of household furnishings, but that he and his wife had intended to set down correctly the articles lost, and the values of such articles. Upon re-examination he testified that he had a general knowledge of the articles of personal property so destroyed, and the value of the same. The defendant objected that this schedule ought not to go to the jury. This objection the court overruled, and permitted the schedule to go to the jury, to which the defendant excepted. At the time of admitting it the court said that it might be admitted as a bill of particulars, but made no further reference to it during the trial, except in the following extracts from the charge: "You will determine what the fair cash value of the buildings was, and the testimony, then, is that there was the household furniture and the clothing of the family and the family supplies. I think all the items that are included in the specification came fairly within the description, and it is for you to say whether the plaintiff has established that he lost all this property, and what its fair value is." "It is for the jury to say, when they weigh all the evidence, whether the opinion of this plaintiff is fair as any as to the value of this property. He says some of it was made up with the assistance of his wife; that he did not have much knowledge of it himself; and he has testified to you how he got at the articles destroyed and the value of them, and you have heard his testimony. You will take that, and you will look over the list of the property itself. And it was property mostly that had been used, as I understood, in the family, —what we should call secondhand property; and you will see what he has established, by a fair balance of testimony, was the value of his property, and for such sum as will cover the fair value of the property described and the buildings burned; and this property that is described and specified, so far as he has shown you and satisfied you it was consumed by this fire, he is entitled to recover what will fairly compensate him; what it is fairly worth; its fair cash value."

As tending to show that cinders might be carried this distance, the plaintiff, in opening his case, introduced evidence that beyond the barn, and some distance from it was an awning, and that previous to the time of the fire in question cinders had fallen upon and burnt this awning, which must have come from the locomotives of the defendant, over the barn and house. There was no evidence tending to show that the cinders which burnt the awning were thrown by the same engines which were claimed to have set the Are in question, nor as to the conditions under which they were thrown to that distance, except it appeared that these same engines which were running over the, road at the time of the fire were being used when the fires were set to the awning. To the admission of this testimony the defendant objected and excepted.

L. M. Read and Geo. E. Lawrence, for plaintiff.

C. A. Prouty and C. W. Witters, for defendant.

MUNSON, J. In actions to recover damages for the injury or destruction of personal property, no greater certainty in description is required than the nature of the articles will conveniently admit of. Gould, Pl. c. 4, § 33. But it is generally necessary to state the quantity or number of the goods in respect of which the loss is alleged to have been sustained. Id. § 35; 1 Chit. Pl. 377. It is said, however, that even this may be dispensed with when the subject-matter of the suit embraces a multiplicity of particulars. Gould, Pl. c. 4, § 36. In the section last cited there is the following special application of this rule: "In an action for the loss of goods by the burning of the plaintiff's house, the goods may be described by the simple denomination of 'goods,' without any designation of their quantity or kind; and it seems that in such a case the words 'divers goods' would be sufficient" A reference to some of the cases from which these rules have been deduced will aid us in determining the sufficiency of the description now in question. It was held in Emery's Case, cited in 1 Vent. 114, that in declaring for the conversion of books it was sufficient to describe the property as "a library of books;" and the adequacy of a description of this character in the case of such property has since been uniformly recognized. Gould, Pl. c. 4, § 36; 1 Chit. Pl. 378; Steph. Pl. 349. Similar descriptions of other personal chattels have been held sufficient in actions of tort for the recovery of damages, both before and after verdict. In trover for a parcel of diamonds, there having been judgment for the plaintiff, it was insisted in error that the case should be distinguished from one where the allegation covered the wrappings and cords of the parcel, and that, inasmuch as each diamond was distinct, the suit should have been for so many diamonds; but the court thought otherwise,...