Hall v. Kitson

3 Pin. 296 | Wis. | 1851

Whitoh, J.

"We think this declaration good after verdict. The principal reason insisted upon by the plaintiff in error, to show that it does not set out a good cause of action, is the omission to state any special damage to the plaintiff. Special damages being the gist of the action, it is contended that the declaration should have set out some damage peculiar to the. plaintiff, and not that merely, which he sustains in common with others. There is no doubt of the correctness of the position, that it was incumbent on the plaintiff to state in his declaration and prove at the trial that he had sustained special injury by means of the erection of the dam. It would not have been sufficient to state merely that he was deterred from attempting to navigate the river with his boats and rafts by means of the obstruction. In order to enable the plaintiff to recover, it must appear that he was obstructed in fact, when he attempted to pass with his boats and rafts. Lanning v. Smith, 8 Cow., 146, and the cases there referred to. The declaration states that the “ plaintiff was and still is obstructed, hindered and prevented from navigating said river with his boats and rafts,” etc. This, we think, is an imperfect and defective statement that the plaintiff was obstructed in fact, when he attempted to navigate the stream; and a defective statement of a good cause of action is cured by a verdict. 1 Chitty’s Pl., ed. of 1833, 712, 722.

In the case of Pangburn v. Ramsey, 11 Johns., 141, the court lay down the rule as to the effect of a verdict in curing defects in pleadings, as follows : “ Where there is a defect, imperfection or omission which would have been a fatal objection on demurrer, yet, if the issue joined is such as necessarily required, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which, it is not to be presumed, that either the judge would direct or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict at common law.” We understand this to be the well settled doctrine upon the subject, and, applied to the case before us, it appears conclusive.

The defendant pleaded the general issue and a special plea setting up a right to build the dam, granted to one Farnsworth by an act of the legislature, and a sale and conveyance of it by Farnsworth to him. The plea of not guilty put in issue the facts stated in the declaration, and compelled the plaintiff to prove that he was obstructed in fact, when he attempted to navigate the stream. The failure to state in the declaration when the plaintiff was obstructed, the circumstances attending the obstruction, and the manner in which the damage was caused, which he sustained by being unable to pass, are defects and omissions which the verdict cures. Peckham v. Holman, 11 Pick., 485.

Judgment affirmed.