Prouty v. Pellett

• Decision Date: 02 May 1922
• Citation: Prouty v. Pellett, 96 Vt. 53, 117 A. 373 (Vt. 1922)
• Parties: FANNY F. PROUTY v. PELLETT & SKINNER
• Court: Vermont Supreme Court

117 A. 373

96 Vt. 53

FANNY F. PROUTY v. PELLETT & SKINNER

Supreme Court of Vermont

May 2, 1922

Special Term at Brattleboro, February, 1922.

ACTION OF TORT to recover for personal injuries.Plea, the general issue.Trial by jury at the September Term, 1921, Windham County, Fish, J., presiding.Verdict and judgment for the defendant.The plaintiff excepted.The opinion states the case.

Judgment affirmed.

O B. Hughes and M. P. Maurice for plaintiff.

Charles F. Black and Barber, Barber & Miller for defendants.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This is an action of tort for personal injuries alleged to have been sustained through the defendant's negligence.Issue was joined on a general denial implied by the rule.Verdict and judgment were for the defendants, and the plaintiff brings the case here on exceptions.The defendants were contractors and builders and were remodeling the Vermont National Bank Building in the village of Brattleboro.They had fenced off the sidewalk adjacent to this building so that people passing there had to step down into and pass along in the roadway.Their workmen had allowed pieces of brick and other building refuse to accumulate and remain in the roadway, and the plaintiff while passing along in the roadway next to the defendant's fence, stepped on some of these broken brick, which rolled under her foot and caused her to fall, and to sustain the injuries sued for.

The original complaint was in the form of a declaration for common law negligence, and when the trial opened, the plaintiff asked leave to amend the complaint by filing two new counts; one for common law negligence and the other counting on a violation of a certain ordinance of the village of Brattleboro.She was allowed to file the first of these, but not the second, and she excepted.

Assuming as counsel have, that the violation of a municipal ordinance gives rise to a civil action for damages,--a proposition on which there is a divergence of opinion (see20 R. C. L. 44), the ruling was without error.That the question of the amendment of pleadings is ordinarily addressed to the discretion of the trial court is admitted.But the plaintiff insists that she was, in the circumstances, entitled as a matter of right to make this amendment; and she calls attention to County Court Rule 11, which provides that at any time before the defendant has answered or within ten days thereafter, the plaintiff may file a new or amended complaint for the same cause of action, without payment of costs.But the rejected amendment was not for the same cause of action.We held in Bouchard v. Central Vermont Ry. Co., 87 Vt. 399, 89 A. 475, L.R.A. 1915C, 33, that counts at common law and counts on a federal statute are for different causes of action.And while we held that such counts could be joined, we called attention to the fact that no question of amendment was before us.That such counts are for different causes of action is also shown by Niles v. Central Vermont Ry. Co., 87 Vt. 356, 89 A. 629, wherein we held that when the declaration was at common law, a replication setting up a federal statute was a departure, not from fact to fact, but from law to law.An amendment that introduces a new cause of action is not allowable.Sowles v. Hartford Life Ins. Co., 85 Vt. 56, 81 A. 98.And so it is that an action at common law cannot be amended into an action on a statute.Fairchild v. Dunbar Furnace, 128 Pa. 485, 18 A. 443;Allen v. Tuscarora Valley R. Co., 229 Pa. 97, 78 A. 34, 30 L.R.A. (N.S.) 1096, 140 Am. St. Rep. 714;Mills v. Western & Atlantic R. Co., 83 Ga. 441, 10 S.E. 113;Union Pacific Ry. Co. v. Wyler, 158 U.S. 285, 39 L.Ed. 983, 15 S.Ct. 877.These cases involved statutes and not ordinances, but so far as this question is concerned they stand alike.

We hardly need add that a ruling in accordance with the well established law of the subject is not open to the charge that it resulted from an abuse of judicial discretion.

During the trial, the plaintiff offered in evidence the ordinance in question, which is No. 17, and provides that no persons shall erect any staging on any street or sidewalk of said village, without first obtaining from the street commissioner a written permit therefor.When suit is predicated on an ordinance as the basis of the action, it must be pleaded.6 Thomp. Neg., § 7470;Indianapolis T. & T. Co. v. Hensley, 186 Ind. 479, 115 N.E. 934, 117 N.E. 854;Flynn v. Chicago City Ry. Co., 250 Ill. 460, 95 N.E. 449.And unless pleaded, it is not available in evidence.

But when the action is not based upon the ordinance, some courts hold that it may be given in evidence though not pleaded.Others hold that it is inadmissible.The cases may be found collected in a note to Cragg v. Los Angeles Trust Co., 16 Ann. Cas. 1061.But however this may be, an ordinance cannot be admitted unless it is material and relevant to the issue on trial, for it is only facts that are logically relevant that are legally admissible.22 C. J. 158.So, here, this ordinance was not admissible unless it tended to show that the defendants were negligent in the respect charged in the declaration.Otherwise, it was wholy irrelevant and so inadmissible.When tested by this rule, the propriety of the ruling is manifest.The lack of a written permit did not have the remotest causal relation to the presence of the broken brick in the roadway, and the exclusion of the ordinance was without error.

It appeared at the trial that the plaintiff worked in the S. A Smith Company toy shop.In argument, the defendants' counsel said to the jury, "It is a matter of common knowledge that shops all over the country are shut down; this very shop is shut down."It is apparent from the record that this last statement had reference to the shop where the plaintiff worked, and that it was counsel's purpose to have the jury consider the fact stated in connection with their allowance of damages, if any.There was no evidence warranting the statement and the plaintiff seasonably excepted to it.It was not retracted, but rather insisted upon by counsel.That the statement regarding the shop where the plaintiff worked was highly improper and unwarranted, we agree.But the general verdict was for the defendant, so the jury did not reach the question of damages, at all.It is not pointed out how the argument could have influenced the jury on the...