Powers v. Bellows Falls Hydro-electric Corp..., 1165.
| Citation | 57 A.2d 114 |
| Decision Date | 03 February 1948 |
| Docket Number | No. 1165.,1165. |
| Parties | POWERS et al. v. BELLOWS FALLS HYDRO-ELECTRIC CORPORATION. |
| Court | Vermont Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Windham County Court; Blackmer, Presiding Judge.
Action by William S. Powers and Winifred J. Powers against Bellows Falls Hydro-Electric Corporation for damages allegedly caused to plaintiffs' farm and personal property thereon by operation of defendant's dam. A judgment was entered allowing plaintiffs' motion to amend the complaint, and the defendant brings exceptions.
Reversed in part and remanded.
Barber & Barber, of Brattleboro, for plaintiff.
Ryan, Smith & Carbine, of Rutland, for defendants.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The defendant owns and operates a dam constructed in 1927 and 1928 across the Connecticut River between Bellows Falls, Vermont, and North Walpole, New Hampshire, and is engaged in the manufacture and sale of electric current. The plaintiff own and possess a farm in this state, abutting on the river, at some distance down stream from the dam. They seek to recover for damages alleged to have been caused to their farm and personal property thereon by the operation of such dam, its flash-boards and gates, so as to cause fluctuations in the flow of water past their farm, and so that the stored water released with freshet flows increases the height to which the water attains in overflowing their farm every time a freshet occurs. Although this action was first brought, it is the third proceeding to reach this Court involving these and other plaintiffs similarly situated. See Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117, and Powers v. Bellows Falls Hydro-Electric Corp., 114 Vt. 536, 48 A.2d 924.
The original complaint in this action was amended in 1939, into two counts: the first count charged negligence and the second charged a public and private nuisance. Upon this complaint there was a trial by jury from January 16, 1940, to March 23, 1940. During the trial the plaintiffs, with the permission of the court, struck out the second count, and the case was submitted on the issue of negligence only. The trial resulted in a disagreement. Owing largely to the absence of counsel in military service in the late war, nothing further was done until the plaintiffs on October 22, 1946, filed a motion to amend their complaint by substituting two new counts for the counts as amended in 1939. The motion was granted subject to exception as to each count, and subject to that exception the defendant demurred to the new first count, and the demurrer was overruled subject to exception. The cause has been brought here before final judgment, and the only questions briefed are to the allowance of the new count 1, and to the overruling of the demurrer thereto.
The defendant contends that the new count attempts to state a new and entirely distinct cause of action from the complaint sought to be amended, because it seeks to recover on a different set of facts and on a different theory. Among other things it is pointed out that the new count is not based upon negligence but upon some other theory of tort, and that while originally recovery was sought only for the damages suffered in March, 1936, the new count seeks to recover all damages suffered since the construction of defendant's dam in 1927 and 1928.
As long as the plaintiff adheres to the contract or injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The true test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully and differently laid. Daley v. Gates, 65 Vt. 591, 592, 27 A. 193; Parker v. Bowen, 98 Vt. 115, 118, 126 A. 522; McCutcheon v. Leonard, 114 Vt. 368, 370, 45 A.2d 200; Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 489, 490, 1 A.2d 817.
While the new count may be characterized as somewhat in the nature of a charge of trespass as contrasted with negligence, the ‘matter’ and the ‘subject of controversy’ are the same; and the amendment in this respect cannot be distinguished in principle from the last above-cited case, where a complaint in negligence was permitted to be amended into one of bad faith.
As claimed by the defendant recovery was originally sought only for the damages suffered in March, 1936, whereas the new count seeks to recover all damages suffered since the construction of the dam. This presents a more serious question. No question is made by the defendant that the plaintiffs could have originally claimed in one suit all the damages suffered since the construction of the dam. However this may be, they could have brought a separate suit each time any damage was caused. 1 Am.Jur.Actions, § 117; Wells v. New Haven & Northampton Co., 151 Mass. 46, 23 N.E. 724, 21 Am.St.Rep. 423. It is obvious that a suit for damages suffered over a period of years is a different cause of action from that claiming damages suffered over the space of only a few days, even though the latter is included in the former. In view of the long time that had elapsed before the filing of the new count the following from 34 Am.Jur.Limitation of Actions, § 260, is very appropriate. ‘One cannot, under the pretext of amending his pleading, state a new or different cause of action from the one originally stated and thereby avoid the running of the statute of limitations.’ It was error to allow the new count 1 as an amendment, and the cause must be reversed. It is unnecessary to discuss the other objections to this amendment, or to decide whether the amendment was sufficient to state a cause of action, as raised in the exception to the overruling of the demurrer.
The judgment, allowing the motion to amend the complaint by substituting therefor two new counts, is reversed as to the first of such new counts, and the cause remanded.
The first ground of the motion for reargument is that the opinion has decided the case upon a ground not briefed or argued. The defendant devoted nearly two pages of its brief to the proposition stated in the opinion ‘that a suit for damages suffered over a period of years is a different cause of action from that claiming damages suffered over the space of only a few days.’ Fault is also found because of the citation of 34 Am.Jur. relative to the statute of limitations. This work was not cited by the defendant, but we know of no rule, in cases where a point has been well made, that limits us to the authorities cited by the excepting party. As a matter of fact, the quotation from Am.Jur. does not show what constitutes stating a new cause of action, but...
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...Parker v. Bowen, 98 Vt. 115, 126 A. 522; Smith v. Badlam and Anderson, 111 Vt. 328, 330, 16 A.2d 182; Powers v. Bellows Falls Hydro-Electric Co., 115 Vt. 243, 245, 57 A.2d 114. The defendant's argument is that the original declaration is on a written offer which is claimed to have been conv......
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...is a different matter, another subject of controversy, or the same matter more fully and differently laid. Powers v. Bellows Falls Hydro-Elec. Corp., 115 Vt. 243, 245, 57 A.2d 114; Daley v. Gates, 65 Vt. 591, 592, 27 A. 193; Parker v. Bowen, 98 Vt. 115, 118, 126 A. 522; Johnson v. Hardware ......
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