vt.) BISHOP v. READSBORO CHAIR MFG. CO. 457 dence under the general issue. 1 Chit. Pl. I der the porch to the front door and over in*449; 1 Saund. Pl. & Ev. 7; Bates v. Stevens, to the yard"; that windows were smashed, 4 Vt. 545; Snow v. Carpenter, 49 Vt. 426. and the house otherwise damaged; that It is said that the declaration contains no (again quoting from the testimony of the allegations of the wife's interest in the prop-husband) "at the further side towards School erty. However this may be, we pass it with-street the pile that run the farthest, it lookout further notice, since neither the declara-ed as though it had fallen off the top of the tion nor a copy thereof has been furnished us. pile, the board had, and had fallen over on the top of the porch and jammed the shingles [4] The defendant moved for a verdict on and broke them, and jammed the porch away the first count, for that there was no evi- from the side of the building an inch and a dence tending to show the defendant guilty half or a quarter." The plaintiff as a witof any negligence which caused the injury ness, being asked whether she could see the alleged therein. Hereon it is argued that it pile this board came from, said: "The pile nowhere appears in the testimony how high was up like that, and the boards had not the pile was from which the boards were been fastened down, * * and, as it slid blown, nor whether the boards in question off the pile, it came right down into the were blown from a pile near the line between house." The evidence also showed that on the properties or from a pile erected in an-two other occasions later boards were blown other part of the yard, or from one of the from these piles over into the plaintiff's piles which were usually in the process of yard and on her premises, hitting the side of construction. This position is not well tak- her buildings and jamming the clapboards en. The plaintiff's evidence tended to show on one or both of the occasions. that 17.6 feet north of the front of the upright part of the plaintiff's house and parallel with it is the south line of School street, and the porch on the front of the house is 6 by 44 feet; that the defendant's land, called here the "Mandeville property," adjoins the plaintiff's land on the west, the line between them running practically at right angles with the line of the street, extending southerly; that this division line is 5.10 feet from the northerly end, and 5.9 feet from the southerly end, of the upright part of the plaintiff's house, and the ell part of the house is nearer, it being at the north corner 3.3 feet and at the south corner 4 feet from the line; that on its side of the division line and near to it the defendant has a storehouse feet wide, extending north and south between 86 and 87 feet, the north end of which is about 63 feet from the south line of the street; that the defendant went into possession of its said property as purchaser in July, 1907; that most of the time since thus taking possession the defendant has had pretty much all of its land from the storehouse north to the street next to the plaintiff's line covered with lumber piles, the piles being very near to the line, and occasionally a board would reach over; that soon after defendant began to pile lumber there, and before any damage was done, the plaintiff's husband, noticing the piles and being fearful that the wind might blow them over, spoke to the defendant's manager about it, asking him if it would not be best to wire or fasten the piles down to hold the top boards from blowing off against the plaintiff's buildings and the windows therein, and the manager said he would see about it, but nothing was done by way of fastening them down; that soon after this interview a heavy wind (in the language of the husband as a witness) "blew the boards here and there and drove some of them through the windows, some of them against the buildings, some of them un Q. [5] In this connection it is further argued that the proximate cause of such injury was not the defendant's negligence, but solely the heavy wind, an act of God for which the defendant is not liable. The only evidence before the court respecting the character of the wind on the occasion when the board or boards were blown through plaintiff's windows, and of the winds to which that place is subject, was introduced by the plaintiff, and was unconflicting. In substance it was that on the occasion referred to there was a heavy hard wind, accompanied by hail, sleet, and snow. On being cross-examined by defendant's counsel touching the wind on that occasion, the witness testified as follows: "Q. The wind must have been blowing hard that night. A. Yes, sir. Whether that was usual? A. I have seen it blow at other times as hard." In answer to another question in cross-examination the witness said: "It is a hard place for winds. It is all open, and the wind blows harder than it used to on School street." Another witness who lived five years on this place before the plaintiff purchased it in 1894 was asked in cross-examination, "Q. You have some hard windstorms over there?" and answered, "Some hard winds." The plaintiff, being cross-examined regarding the board that came into her window, testified as follows: "Q. The first was the one that went through the pantry window? A. Yes. Q. How big was that board? A. My windows are 14 by 30, I should say a foot wide and 7 or 8 or 9 feet long, a heavy board. Q. That must have been quite a wind that day? A. It was, but we have quite winds." This evidence shows an ordinary hard wind, such as frequently occurs at that place at such season of the year. It does not show such an extraordinary or unprecedented wind as may properly be termed in law an act of God. [6] In thus piling lumber at the place shown by the testimony the defendant was | bone v. Burton, 20 Vt. 302; Dodge v. Stacy, engaged in a lawful business on its own land. 39 Vt. 558; Howe Scale Co. v. Terry, 47 Yet in so doing it was in duty bound to ex- Vt. 109. Whether liability attaches after ercise due care against infringing the legal notice of the existence of the nuisance withrights of the owner of the adjoining prop-out a request for its removal we need not erty. As ordinary hard winds of the char- consider, for, in the case before us, we think acter of that on the occasion in question are the plaintiff's evidence fairly amounted to such as might have been reasonably expected both. The transcript of the evidence is made to occur there, the defendant was bound to a part of the exceptions for the purpose, know that fact and in piling lumber to ex- among other things, of testing the accuracy ercise the care and prudence of a prudent of the statements in the bill of exceptions man in like circumstances to guard against as to the meaning and tendency of the testhe probable consequences of such winds. timony, and is made to control. The bill The evidence on the part of the plaintiff tend- does not accurately state the tendency of ing to show negligence by the defendant in the plaintiff's evidence in this respect. The this respect was such that a verdict for plaintiff's husband testified as follows: "Q. the plaintiff might reasonably and properly Was there a time soon after the Readsboro be based thereon, and there was no error Chair Company bought that property when in submitting it to the jury. Vaughan v. you had a talk with one of the officers about Menlove, 3 Bing, N. C. 468, 18 Eng. Rul. that snow? A. Yes, sir. Q. And whom did Cas. 715; Mayor of New York v. Bailey, 2 you talk with? A. I talked with Mr. Clark, Denio (N. Y.) 433; Dunsbach v. Hollister, Mr. A. B. Clark. Q. What was your talk 49 Hun, 352, 2 N. Y. Supp. 94, affirmed in about this snow? A. I spoke to Mr. Clark 132 N. Y. 602, 30 N. E. 1152; Washburn I think two or three times in regard to that v. Gilman, 64 Me. 163, 18 Am. Rep. 246; snow, and asked him to put some snow Garland v. Towne, 55 N. H. 55, 20 Am. Rep. protectors on to hold the snow on his roof, 165. and not let it come onto us. Q. What did Mr. Clark say about that? A. He said he guessed it could be fixed. Q. What did he say he would do? A. He said he would look it over. He did not tell me whether he would or would not do it in regard to the roof. Q. Did you speak to Mr. Clark about a protector, or did he speak about a protector? A. I spoke to him first. Q. Was anything done about it? A. Never; no, sir." The defendant moved for a verdict upon the second count, stating four different grounds therefor, but reliance is now placed only upon the first two; that there was no evidence showing the defendant guilty of any negligence which caused the injury in the count complained of; and that by the undisputed evidence the defendant did not erect the building from the roof of which the snow is alleged to have slid. The motion was properly overruled. [7] As to the first ground, the evidence shows beyond question that snow was allowed to slide from defendant's roof onto the plaintiff's premises and against her house, to her injury as alleged, and that defendant did nothing to prevent it. The second ground requires a more extended consideration. The "Mandeville property" was purchased by the defendant on December 5, 1906, but possession thereof could not pass under the deed of conveyance until May 1, 1907, and did not in fact till July following. At the time the defendant purchased this property the storehouse was on it just as it No change has since been made in the location of the building, nor in the building itself. It is contended that the damages sought to be recovered by reason of snow sliding from the roof of the building were suffered before any notice from the plaintiff to the defendant to abate the nuisance, and consequently no recovery can be had there for. [8] Treating this as within the motion (though it seems otherwise), the general rule of law that the grantee of an estate is not liable for an injury resulting from the continuance of any nuisance erected thereon before he came to the estate until he has no [9] No particular form of notice or request is required, and it may be either written or oral, or by acts done. If it informs the party to be affected by it of the existence of the nuisance, and of the desire of the party injured to have it removed, so that the person to whom it is addressed fully understands the ground of the complaint, and that the party giving it is unwilling to have it continue, it is sufficient. Carleton v. Redington, 21 N. H. 291; Snow v. Cowles, 26 N. H. 275; Conhocton Stone Road v. Buffalo, etc., R. Co., 51 N. Y. 573, 10 Am. Rep. 646. It is further argued that it does not appear that Clark was engaged in the business of the corporation at any of the times when Bishop spoke to him about the snow, that what Bishop said was intended for the corporation, or that Clark had any authority in respect thereof, so that notice to him would bind the corporation. These are questions not covered by the motion, and therefore not considered. It is said in defendant's brief that the statement in the bill of exceptions that the evidence of the plaintiff tended to show that her husband acted in all these matters as her agent is not warranted by the testimony. [10] The plaintiff when on the stand as a witness was asked what she did, if anything, in regard to notifying the defendant or its Vt.) BISHOP v. READSBORO CHAIR MFG. CO. 459 will sometimes suffice to raise the presump- to this snow that come off their roof against her house, and answered, "Mr. Bishop went and spoke to"-She was then interrupted by the court, with the question whether she heard the talk, and answered in the negative. Her answer before such interruption, viewed in the light of the question asked, fairly means that she sent her husband. In In cross-examination, having testified concerning the occasion of the boards first being blown against her house, she was asked whether she had spoken "about the boards to Mr. Newton or to Mr. Clark before that time." To which she answered, "I had sent word to Mr. Clark. I did the next morning after the storm, asking him to come up." Again: "Q. You never had any talk with him (Mr. Newton) before the suit was brought? A. No; I always sent word to Mr. Clark." In redirect examination. she testified, also, to sending Mr. Clark word after the snow came into the house to come up and see that, she wanted him to see the broken glass, but that neither he nor any one else from the company came. There was evidence that the plaintiff on one occasion sent Mr. Clark a letter respecting the boards, but there was no evidence that she ever sent him word regarding the snow from defendant's roof, other than by her husband. The plaintiff further testified that, before her marriage to Mr. Bishop, she attended to her own business, and attended to and cared for her buildings and made repairs on them. She was then asked whether since her marriage to Mr. Bishop he had helped her somewhat. To which she answered: "On the outside, but he don't in the inside. I look after my own business inside just the same." This testimony of the plaintiff is for consideration in connection with the other testimony showing the relation of husband and wife, and with the testimony of the husband as to what he did soon after the defendant entered into possession of the Mandeville property by way of seeing the defendant's manager about fastening down the piles of boards to prevent the top boards from blowing against the plaintiff's buildings and the windows, and in notifying the defendant regarding the sliding of snow from the roof of the storehouse onto his wife's land, and requesting In ignoring the ninth request, that, before that it be remedied, and his acts thenceforth the jury could award the plaintiff damages to the bringing of this suit. Thus consider- by reason of snow sliding from the defended we think the evidence fairly warrants the ant's roof, she must prove by a fair balance statement in the bill of exceptions, respect- of the evidence that there existed and was ing the tendency of the plaintiff's evidence known to the defendant some means by which as to the agency of the husband for the such an occurrence could be prevented, the wife. court acted well. It may be said, also, that the evidence was sufficient to go to the jury on the question of agency by ratification. Mr. Greenleaf says: "The acts and conduct of the principal, evincing an assent to the act of the agent, are interpreted liberally in favor of the latter, and slight circumstances [11] Defendant excepted to the noncompliance with its seventh request to charge: That the jury should not include in any damages to which they might find the plaintiff entitled any sum for labor performed by the plaintiff's husband. The evidence tended to show that whatever the husband did in the way of making repairs on the plaintiff's house consequent on the injuries in question in this case he did for his wife and at her expense. As to such labor, it could not be ruled according to the request as a matter of law. The request being unsound in that respect, we need not consider how it was with reference to labor in removing the snow that slid from the defendant's roof. Its refusal was not error. [12] Defendant also excepted to the failure of the court to charge in conformity to its tenth request, which was that the plaintiff could not recover for any damage by reason of the accumulation upon the ground of snow which fell from the defendant's roof. This request was properly disregarded. Such an invasion of the plaintiff's rights, if continued long enough, would give the defendant a prescriptive right; and hence the plaintiff is entitled to nominal damages at least. Willey v. Hunter, 57 Vt. 479. [13] It is a matter of common knowledge that roof guards placed just above the eaves of a roof to prevent snow from sliding off are in effective use. And of matters of general knowledge within its jurisdiction a court will take judicial notice, and no evidence thereof need be given by the party alleging their existence. Stephen's Digest of Ev. (Chase's Ed.) 173; Hoyt v. Russell, 117 U. S. 401, 6 Sup. Ct. 881, 29 L. Ed. 914. [14] The eleventh request, that the fact, if it be found, that defendant's officers did not come to look at the property when requested to do so by the plaintiff is not evidence of willfulness, wantoness, or malice on the part of the defendant, was properly refused. How it might be were the acts to which reference is there made the only matters of conduct by said officers upon which the plaintiff relies as affording a basis for exemplary damages we need not consider; for, taken with the other acts of the officers appearing from the evidence, the case shows such a wanton invasion of the plaintiff's rights as in law to imply malice. [15] Subject to objection and exception the plaintiff was permitted to testify that since the bringing of this suit the snow had slid from defendant's storehouse against her house. This evidence was admitted solely as bearing upon the motive and intent of the defendant at the time of the happening of the injuries for which she seeks to recover. In view of the fact that the defendant gave no heed to the plaintiff's notice of the existence of the nuisance, and her request to abate it, we think the fact that after the suit was brought the defendant knowingly permitted such nuisance to continue to the further annoyance of the plaintiff was evidence tending to show malice at the time of the injuries complained of. It was in principle like a repetition of the slanderous words by the defendant subsequent to the bringing of the suit for damages resulting therefrom. Evidence of such repetition has been held to be admissible for the purpose of showing the animus of the defendant at the time in question. Rea v. Harrington, 58 Vt. 181, 2 Atl. 475, 56 Am. Rep. 561; Knapp v. Fuller, 55 Vt. 311, 45 Am. Rep. 618. the defendant, a municipal corporation, in the construction and maintenance of its sewer. The negligence was that of the municipal trustees in not properly connecting certain sewers, etc., by reason of which sewage accumulated in the brook near the dwelling occupied by the plaintiff, and the trustees, though notified thereof several times, did not remedy the defects, etc. Holding that exemplary damages could not be awarded against the municipality unless it in some legal way, either authorized or subsequently approved of the wrongful act or neglect, the court said the trustees of such a corporation can act only by a majority vote; that they are the business managers of the corporation, but, after once elected, the voters and taxpayers on whom such damages must fall if awarded cannot, during their term of office, discharge them, and usually cannot control their action within the scope of their office. The Wells Case was trespass for assault and battery by the conductor of the defendant railroad in forcibly ejecting a passenger from the train. In Denver & Rio Grande R. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 1146, the action was to recover for injuries sustained by the plaintiff in his person by reason of an illegal and wrongful assault made by the railroad company's agents and employés acting under its vice president and assistant general manager. The court, speaking through Mr. Justice Harlan, said that from the evidence the defendant within the meaning of the rule holding corporations responsible for the misconduct of their servants in the course of its business and of their employment directed that to be done which was done; and it was held that the doctrine of punitive damages should apply upon the ground that the evidence clearly showed that the corporation by its governing officers participated in and directed the things planned and done. In Lake Shore & Mich. S. R. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, the doctrine of which was followed in Willett v. St. Albans, the court, speaking by Mr. Justice Gray, after noticing the Denver & Rio Grande Railroad Company Case, said: "The president and general manager, or, in his absence, the vice president in his place, actually wielding the whole executive power of the corporation, may well be treated as so far repre [16] The question of the responsibility of the defendant for such conduct on the part of its officers, if shown, is presented. The defendant asserts nonliability, and in support thereof invokes the rule laid down in Willett v. St. Albans, 69 Vt. 330, 38 Atl. 72, and followed in Wells v. Boston & Maine R. R., 82 Vt. 108, 71 Atl. 1103, 137 Am. St. Rep. 987. The doctrine of these cases is that, where the offender is the agent or servant of a corporation, the principal can be made lia-senting the corporation and identified with ble for this class of damages only when it has either directed, participated in, or subsequently approved the misconduct of the agent or servant. In the case at bar the defendant's officers, whose acts have been established by the verdict as wanton, willful, and malicious, are the president and the treasurer of the corporation; the latter being also the manager of the company. The question is whether the official relation of the offenders to the corporation distinguishes this case from the two cases named. In the Willett Case the action was to recover it that any wanton, malicious, or oppressive intent of his in doing wrongful acts in behalf of the corporation to the injury of others may be treated as the intent of the corporation itself. But the conductor of a train or other subordinate agent or servant of a railroad corporation occupies a very different position, and is no more identified with his principal, so as to affect the latter with his own unlawful and criminal intent than any agent or servant standing in a corresponding relation to natural persons carrying on a manufactory, a mine, or a house of vt.) STATE v. AVERILL 461 about it, asking him if he was going to continue piling boards and not fasten them down, the manager said he had told their foreman who had charge of the lumber in the yard to fix it either by weighting it or wiring the boards to hold them. The objection made was that the defendant was not obliged to weight the boards, and therefore the evidence is immaterial. The court rightly ruled that whether it was immaterial or not depended on what a careful and prudent man would do. The witness was further allowed to testify that quite a little while after that the boards were wired down. It is argued that this also was error. We think the distinction drawn by the | when he spoke to the defendant's manager federal Supreme Court in these two cases is logically sound in basis, just and reasonable. In principle the same distinction is often made in negligence cases between the acts of a servant and the acts of those representing the master as affecting liability. A corporate body in the management and prosecution of its business necessarily acts through its governing officers, and therein, as to third persons with whom they are brought in contact or collision, such officers stand to all intents and purposes as the corporation itself, and all acts done and performed by them in the course of its business and of their employment, whether in contractu or in delicto, are characterized accordingly. Within the meaning of the law the corporation participates therein, and it is responsible for the consequences the same as an individual is responsible in similar circumstances. Philadelphia, W. & B. Railroad Co. v. Quigley, 21 How. 202, 16 L. Ed. 73. It follows that if such acts be of a character to give a right of action against the corporation in forin appropriate for the allowance of punitive damages, and, as in the case before us, the evidence affords a proper basis therefor, they may be awarded. [17] The plaintiff's husband was permitted to testify his opinion as to amount of damages to her house, resulting from the boards blown against it. The defendant objected thereto solely upon the ground that opinion evidence is not admissible for that purpose. The evidence shows the injuries to the house, so caused, to be in general the smashing of windows, the jamming and splitting of clapboards, in different places on the house, the breaking of a hole or holes in the roof of the porch, and the porch from the side of the house. The general rule in this state is against the admission of this class of evidence for such purpose. Cavendish v. Troy, 41 Vt. 99; Bates v. Sharon, 45 Vt. 475; State v. Ward, 61 Vt. 153, 17 Atl. 483; Bain v. Cushman, 60 Vt. 343, 15 Atl. 171. Yet this rule has its exceptions, one of which is stated and was applied in the former case. Where the witness had the means of personal observation, and the facts and circumstances which lead his mind to a conclusion are incapable of being detailed and described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is often allowed to add his opinion, or conclusion. We think the present case in the respect named falls within this exception to the general rule rather than within the rule itself, and that therein the ruling of the trial court was without error. [18] Subject to objection, the plaintiff's husband was permitted to testify that after the first injury to the house by the boards [19] However, the evidence was received without objection, and the question is not before us. This in effect disposes of all the points in defendant's brief. Judgment affirmed. (85 Vt. 115) STATE V. AVERILL (Supreme Court of Vermont. Franklin. Oct. 9, 1911.) 1. HOMICIDE (§ 158*)-EVIDENCE-THREats. threats by accused to kill deceased are admisIn a prosecution for homicide, previous sible to show the state of accused's mind, his intent to kill, and his malice against deceased at the time of the homicide; the remoteness of the threats, in point of time, relating only to the weight of the evidence, and not to its admissibility. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] 2. HOMICIDE (§ 158*)-PREVIOUS THREATSEVIDENCE. In a prosecution for homicide, evidence of prior threats by accused to kill deceased was not objectionable as an attack on accused's character. Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] ACTER OF ACCUSED. The rule that prosecutor cannot impeach the character of accused until accused has adduced evidence to support it refers only to the general character restricted to the trait in issue, and does not apply to evidence otherwise having a legitimate bearing on the guilt of accused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. § 376.*] 4. WITNESSES (8 37*)-COMPETENCY-CONVER SATIONS. That a witness did not hear all that acdid not render her incompetent to testify to cused said in a prior conversation with deceased the part of the conversation she did hear. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 85; Dec. Dig. § 37.*] 5. CRIMINAL LAW (§ 448*) - CONCLUSION OF WITNESS. accused said and did at a particular time and Where a witness had fully stated all that place, a question whether accused made any *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 1. |