Preston v. St. J. &. L. C. Rd.

64 Vt. 280 | Vt. | 1891

TAFT, J.

delivered the opinion of the Court.

The question of a misjoinder of counts was ruled against the defendant in Ranney, Admr. v. St. J. & L. C. R. Co. heard at this term ante, p. 277.

It is claimed that the several counts are defective. The phraseology of the allegation of the breach of the defendant’s duty differs in some respects in the different counts, but there is a substantial allegation in each one, either that the defendant furnished the plaintiff with cars insufficiently, carelessly and negligently constructed, and of unfit material, or, with cars unsafe or unfit for the plaintiff to use, or, with cars insufficiently and carelessly constructed and arranged, or, with loads insufficiently and improperly secured.

The defendant insists that the defects in the cars, and in what respect the cars were unsafe and unfit to use, and in what manner the cars were carelessly constructed and the loads improperly secured, should be specified and pointed out in the declaration, to enable it to prepare its evidence to meet the plaintiff’s case. Upon that point, the character and material of the construction of the cars, and the manner in which they were loaded, is all that is brought in issue by the declaration, and all that the plaintiff can offer evidence upon, and all that the defendant is called upon to meet; we perceive no difficulty in the way of preparation by the defendant of its defence. It is fully informed of the claim that its negligence consisted in carelessly constructing its cars of unsafe and unfit material, or furnishing such a car, and furnishing improperly loaded cars. The defendant is in possession, and ought to know of the construction, and material of which its cars are constructed. Its means of knowledge are much better than those of the plaintiff.

In actions on the case for negligence, the cause of action should be fully and specifically disclosed for the information of the defendant; but a general statement of thé cause of action is all that is required, if the statement, is sufficient to put the defendant on his defence, and fully and fairly informs him of the plaintiff’s claim.

It is said that in stating the injury it is frequently sufficient to describe it generally, without setting out the particulars of the defendant’s misconduct. Thus, in an 'action for persuading the plaintiff’s wife to leave him, it is sufficient to state that the defendant unlawfully persuaded and enticed the wife to continue absent, etc, without setting forth the means of persuasion used by the defendant. So in actions for diverting water from a stream, or disturbing a right of common way, etc., it is sufficient to allege a diversion or disturbance generally, without showing the particular means employed. 1 Ch. Pl. 391. In an action for breach of warranty of soundness of a horse, it is sufficient to assign the breach in the negative terms of the warranty, without alleging wherein the unsoundness consisted. Wheeler v. Wheelock, 33 Vt. 144. In actions for damages caused by the insufficiency and want of repair of a highway, we think the practice in framing declarations has always been to allege the breach by negativing the words of the statute, without setting forth the particular defects in the highway, and it was said by Bennett J., in Noyes v. Turnpike Co., 11 Vt. 531, that no reason was shown, nor perceived, why this latter allegation should be necessary.

In the respect indicated the counts are sufficient, and a good cause of action is set forth in each. In some of the counts it is alleged in what respect the cars, were insufficient, and carelessly loaded, etc., and these allegations are criticized by defendant’s counsel as defective ; but as the counts in their other allegations set forth a good cause of action irrespective of these claimed defective allegations, and the allegations in the counts are not repugnant, the counts are not bad. The allegations specifying the defects can be stricken out and still leave a good cause of action set forth. The specific defects being alleged, the plaintiff may be confined in the evidence to proof of what is alleged, but that does not render the counts demurrable. The counts are ‘sufficient and well joined.

Judgment affirmed a/nd cause remanded.