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Vt.)

BISHOP V. READSBORO CHAIR MFG. CO.

457

*

dence under the general issue. 1 Chit. Pl. 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 pror- husband) “at the further side towards Schoo! 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 furnish- pile, the board had, and had fallen over on ed us.

the top of tne 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 nowlere 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. thati 17.6 feet north of the front of the up [5] In this connection it is further argued right part of the plaintiff's house and parallel that the proximate cause of such injury was with it is the south line of School street, and not the defendant's negligence, but solely the porch on the front of the house is 6 by the heavy wind, an act of God for which 444 feet; that the defendant's land, called the defendant is not liable. The only evihere the "Mandeville property," adjoins the dence before the court respecting the charplaintiff's land on the west, the line between acter of the wind on the occasion when the them running practically at right angles board or boards were blown through plainwith the line of the street, extending south- tiff's windows, and of the winds to which erly; that this division line is 5.10 feet from that place is subject, was introduced by the the northerly end, and 5.9 feet from the plaintiff, and was unconflicting. In substance southerly end, of the upright part of the it was that on the occasion referred to there plaintiff's house, and the ell part of the was a heavy hard wind, accompanied by house is nearer, it being at the north corner hail, sleet, and snow. On being cross-ex3.3 feet and at the south corner 4 feet from amined by defendant's counsel touching the the line; that on its side of the division line wind on that occasion, the witness testified and near to it the defendant has a store- as follows: "Q. The wind must have been house

feet wide, extending north and blowing hard that night. A. Yes, sir. Q. south between 86 and 87 feet, the north end of Whether that was usual? A. I have seen it which is about 63 feet from the south line of blow at other times as hard.” In answer the street; that the defendant went into pos- to another question in cross-examination the session of its said property as purchaser in witness said: “It is a hard place for winds. July, 1907; that most of the time since thus It is all open, and the wind blows harder taking possession the defendant has had than it used to on School street.” Another pretty much all of its land from the store- witness who lived five years on this place house north to the street next to the plain- before the plaintiff purchased it in 1894 tiff's line covered with lumber piles, the piles was asked in cross-examination, "Q. You have being very near to the line, and occasionally some hard windstorms over there?” and ana board would reach over; that soon after swered, “Some hard winds.” The plaintiff, defendant began to pile lumber there, and being cross-examined regarding the board before any damage was done, the plaintiff's that came into her window, testified as folhusband, noticing the piles and being fear- lows: "Q. The first was the one that went ful that the wind might blow them over, through the pantry window? A. Yes. Q. spoke to the defendant's manager about it, How big was that board ? A. My windows asking him if it would not be best to wire or are 14 by 30, I should say a foot wide and fasten the piles down to hold the top boards 7 or 8 or 9 feet long, a heavy board. Q. from blowing off against the plaintiff's build- That must have been quite a wind that day? ings and the windows therein, and the man- A. It was, but we have quite winds." This ager said he would see about it, but nothing evidence shows an ordinary hard wind, such was done by way of fastening them down; as frequently occurs at that place at such that soon after this interview a heavy wind season of the year. It does not show such (in the language of the husband as a witness) an extraordinary or unprecedented wind as “blew the boards here and there and drove may properly be termed in law an act of some of them through the windows, some of God. them against the buildings, some of them un [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 Jr. 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 The defendant moved for a verdict upon the Mr. Clark say about that? A. He said he second count, stating four different grounds guessed it could be fixed. Q. What did he therefor, but reliance is now placed only say he would do? A. He said he would upon the first two; that there was no evi- look it over. He did not tell me whether dence showing the defendant guilty of any he would or would not do it in regard to negligence which caused the injury in the the roof. Q. Did you speak to Mr. Clark count complained of; and that by the un- about a protector, or did he speak about a disputed evidence the defendant did not protector? A. I spoke to him first. Q. Was erect the building from the roof of which anything done about it? A. Never; no, sir." the snow is alleged to have slid. The mo [9] No particular form of notice or request tion was properly overruled.

is required, and it may be either written or [7] As to the first ground, the evidence oral, or by acts done. If it informs the shows beyond question that snow was al- party to be affected by it of the existence lowed to slide from defendant's roof onto of the nuisance, and of the desire of the the plaintiff's premises and against her party injured to have it removed, so that house, to her injury as alleged, and that de- the person to whom it is addressed fully fendant did nothing to prevent it. The second understands the ground of the complaint, ground requires a more extended considera- and that the party giving it is unwilling to tion. The "Mandeville property” was pur- have it continue, it is sufficient. Carleton chased by the defendant on December 5, v. Redington, 21 N. H. 291; Snow v. Cowles, 1906, but possession thereof could not pass 26 X. H. 275; Conhocton Stone Road V. under the deed of conveyance until May 1, Buffalo, etc., R. Co., 51 N. Y. 573, 10 Am. 1907, and did not in fact till July following. Rep. 646. It is further argued that it does At the time the defendant purchased this not appear that Clark was engaged in the property the storehouse was on it just as it business of the corporation at any of the

No change has since been made in times when Bishop spoke to him about the the location of the building, nor in the build- snow, that what Bishop said was intended ing itself. It is contended that the damages for the corporation, or that Clark had any sought to be recovered by reason of snow authority in respect thereof, so that notice sliding from the roof of the building were to him would bind the corporation. These suffered before any notice from the plaintiff are questions not covered by the motion, to the defendant to abate the nuisance, and and therefore not considered. It is said in consequently no recovery can be had there- defendant's brief that the statement in the for.

bill of exceptions that the evidence of the [8] Treating this as within the motion plaintiff tended to show that her husband (though it seems otherwise), the general rule acted in all these matters as her agent is of law that the grantee of an estate is not not warranted by the testimony. liable for an injury resulting from the con [10] The plaintiff when on the stand as a tinuance of any nuisance erected thereon be witness was asked what she didl, if anything, fore he came to the estate until he has no- in regard to notifying the defendant or its

Vt.)

BISHOP V. READSBORO CHAIR MFG. CO.

459

up."

to this snow that come off their roof against, will sometimes suffice to raise the presumpher house, and answered, "Mr. Bishop went tions of a ratification, which becomes strongand spoke to”-She was then interrupted er in proportion as the conduct of the princiby the court, with the question whether pal is inconsistent with any other supposishe heard the talk, and answered in the neg- i tion.” 2 Greenl. Ev. § 66. Moreover, the ative. Her answer before such interruption, bill of exceptions further states that the viewed in the light of the question asked, fact of such agency was not contradicted fairly means that she sent her husband. In by the defendant. And, in addition therecross-examination, having testified concern- to, the course of procedure during the trial, ing the occasion of the boards first being as shown by the transcript, was that the blown against her house, she was asked husband was acting for the wife. No obwhether she had spoken "about the boards jection was made by the defendant to the to Mr. Newton or to Mr. Clark before that husband's testimony as to what he told Mr. time.” To which she answered, "I had sent Clark, treasurer, also manager, of defendword to Mr. Clark. I did the next morn- ant company, soon after the company took ing after the storm, asking him to come possession of the "Mandeville property," re

Again: "Q. You never had any talk garding the snow coming from the roof of with him (Mr. Newton) before the suit was the storehouse on to the wife's land, etc., brought? A. No; I always sent word to Mr. except that it was immaterial, "on the Clark.” In redirect examination. she testi- ground that the defendant owes the plaintiff fied, also, to sending Mr. Clark word after no duty in respect of this roof and the the snow came into the house to come up snow on it." and see that, she wanted him to see the [11] Defendant excepted to the noncombroken glass, but that neither he nor any pliance with its seventh request to charge: one else from the company came. There That the jury should not include in any was evidence that the plaintiff on one oc- damages to which they might find the plaincasion sent Mr. Clark a letter respecting tiff entitled any sum for labor performed the boards, but there was no evidence that by the plaintiff's husband. The evidence she ever sent him word regarding the snow tended to show that whatever the husband from defendant's roof, other than by her did in the way of making repairs on the husband. The plaintiff further testified that, plaintiff's house consequent on the injuries before her marriage to Mr. Bishop, she at- in question in this case he did for his wife tended to her own business, and attended and at her expense. As to such labor, it to and cared for her buildings and made could not be ruled according to the request repairs on them. She was then asked wheth- as a matter of law. The request being uner since her marriage to Mr. Bishop he had sound in that respect, we need not consider helped her somewhat. To which she an- | how it was with reference to labor in reswered: “On the outside, but he don't in moving the snow that slid from the defendthe inside. I look after my own business ants roof. Its refusal was not error. inside just the same." This testimony of

[12] Defendant also excepted to the failthe plaintiff is for consideration in connec-ure of the court to charge in conformity to tion with the other testimony showing the its tenth request, which was that the plainrelation of husband and wife, and with the tiff could not recover for any damage by testimony of the husband as to what he did reason of the accumulation upon the ground soon after the defendant entered into posses- of snow which fell from the defendant's sion of the Mandeville property by way of roof. This request was properly disregardseeing the defendant's manager about fast- ed. Such an invasion of the plaintiff's ening down the piles of boards to prevent rights, if continued long enough, would give the top boards from blowing against the the defendant a prescriptive right; and plaintiff's buildings and the windows, and hence the plaintiff is entitled to nominał in notifying the defendant regarding the damages at least. Willey v. Hunter, 57 Vt. sliding of snow from the roof of the store- 479. house 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

[13] It is a matter of common knowledge was sufficient to go to the jury on the ques- that roof guards placed just above the eaves. tion of agency by ratification. Mr. Green- of a roof to prevent snow from sliding off leaf says: "The acts and conduct of the are in effective use. And of matters of genprincipal, evincing an assent to the act of eral knowledge within its jurisdiction a court the agent, are interpreted liberally in fa- will take judicial notice, and no evidence vor of the latter, and slight circumstances thereof need be given by the party alleging

their existence. Stephen's Digest of Ev., the defendant, a municipal corporation, in (Chase's Ed.) 173; Hoyt v. Russell, 117 U. s. the construction and maintenance of its sew401, 6 Sup. Ct. 881, 29 L. Ed. 914.

er. The negligence was that of the municipal [14] The eleventh request, that the fact, trustees in not properly connecting certain if it be found, that defendant's officers did sewers, etc., by reason of which sewage acnot come to look at the property when re-cumulated in the brook near the dwelling quested to do so by the plaintiff is not evi- occupied by the plaintiff, and the trustees, dence of willfulness, wantoness, or malice though notified thereof sereral times, did on the part of the defendant, was properly not remedy the defects, etc. Holding that refused. How it might be were the acts to exemplary damages could not be awarded which reference is there made the only mat- against the municipality unless it in some ters of conduct by said officers upon which legal way, either authorized or subsequently the plaintiff relies as affording a basis for approved of the wrongful act or neglect, the exemplary damages we need not consider; court said the trustees of such a corporation for, taken with the other acts of the officers can act only by a majority vote; that they appearing from the evidence, the case shows are the business managers of the corporation, such a wanton invasion of the plaintiff's but, after once elected, the voters and taxrights as in law to imply malice.

payers on whom such damages must fall if [15] Subject to objection and exception the awarded cannot, during their term of office, plaintiff was permitted to testify that since discharge them, and usually cannot control the bringing of this suit the snow bad slid their action within the scope of their office. from defendant's storehouse against her The Wells Case was trespass for assault and house. This evidence was admitted solely as battery by the conductor of the defendant bearing upon the motive and intent of the de- railroad in forcibly ejecting a passenger from fendant at the time of the happening of the the train. In Denver & Rio Grande R. Co. injuries for which she seeks to recover. In v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 view of the fact that the defendant gave L. Ed. 1146, the action was to recover for no heed to the plaintiff's notice of the exist- injuries sustained by the plaintiff in his perence of the nuisance, and her request to abate son by reason of an illegal and wrongful asit, we think the fact that after the suit sault made by the railroad company's agents was brought the defendant knowingly per- and employés acting under its vice president mitted such nuisance to continue to the fur- and assistant general manager. The court, ther annoyance of the plaintiff was evidence speaking through Mr. Justice Harlan, said tending to show malice at the time of the that from the evidence the defendant withinjuries complained of. It was in principle in the meaning of the rule holding corporalike a repetition of the slanderous words by tions responsible for the misconduct of their the defendant subsequent to the bringing of servants in the course of its business and the suit for damages resulting therefrom. of their employment directed that to be done Evidence of such repetition has been held to which was done; and it was held that the be admissible for the purpose of showing the doctrine of punitive damages should apply animus of the defendant at the time in ques- upon the ground that the evidence clearly tion. Rea v. Harrington, 58 Vt. 181, 2 Atl. showed that the corporation by its governing 475, 56 Am. Rep. 561; Knapp v. Fuller, 55 officers participated in and directed the things Vt. 311, 45 Am. Rep. 618.

planned and done. In Lake Shore & Mich. [16] The question of the responsibility of S. R. Co. v. Prentice, 147 U. S. 101, 13 Sup. the defendant for such conduct on the part Ct. 261, 37 L. Ed. 97, the doctrine of which of its officers, if shown, is presented. The was followed in Willett v. St. Albans, the defendant asserts nonliability, and in sup-court, speaking by Mr. Justice Gray, after port thereof invokes the rule laid down in noticing the Denver & Rio Grande RailWillett v. St. Albans, 69 Vt. 330, 38 Atl. 72, road Company Case, said: "The president and followed in Wells v. Boston & Maine R. and general manager, or, in his absence, the R., 82 Vt. 108, 71 Atl. 1103, 137 Am. St. Rep. vice president in his place, actually wielding 987. The doctrine of these cases is that, the whole executive power of the corporawhere the offender is the agent or servant of tion, may well be treated as so far reprea corporation, the principal can be made lia- senting the corporation and identified with ble for this class of damages only when it it that any wanton, malicious, or oppressive has either directed, participated in, or sub- intent of his in doing wrongful acts in besequently approved the misconduct of the half of the corporation to the injury of othagent or servant. In the case at bar the de- ers may be treated as the intent of the corfendant's officers, whose acts have been es- poration itself. But the conductor of a train tablished by the verdict as wanton, willful, or other subordinate agent or servant of a and malicious, are the president and the railroad corporation occupies a very differtreasurer of the corporation; the latter be- ent position, and is no more identified with ing also the manager of the company. The his principal, so as to affect the latter with question is whether the official relation of his own unlawful and criminal intent than the offenders to the corporation distinguish- any agent or servant standing in a correes this case from the two cases named. In sponding relation to natural persons carrying the Willett Case the action was to recover on a manufactory, a mine, or a house of

Vt.)

STATE v. AVERILL

461

We think the distinction drawn by the when he spoke to the defendant's manager federal Supreme Court in these two cases is about it, asking him if he was going to logically sound in basis, just and reasonable. continue piling boards and not fasten them In principle the same distinction is often down, the manager said he had told their made in negligence cases between the acts of foreman who had charge of the lumber in a servant and the acts of those representing the yard to fix it either by weighting it or the master as affecting liability. A corpo- wiring the boards to hold them. The objecrate body in the management and prosecu- tion made was that the defendant was not tion of its business necessarily acts through obliged to weight the boards, and therefore its governing officers, and therein, as to the evidence is immaterial. The court rightthird persons with whom they are brought ly ruled that whether it was immaterial or in contact or collision, such officers stand to not depended on what a careful and pruall intents and purposes as the corporation dent man would do. The witness was furitself, and all acts done and performed by ther allowed to testify that quite a little them in the course of its business and of while after that the boards were wired their employment, whether in contractu or down. It is argued that this also was erin delicto, are characterized accordingly. ror. Within the meaning of the law the corpora

[19] However, the evidence was received tion participates therein, and it is responsi- without objection, and the question is not ble for the consequences the same as an before us. individual is responsible in similar circum

This in effect disposes of all the points in stances. Philadelphia, W. & B. Railroad defendant's brief. Co. v. Quigley, 21 How. 202, 16 L. Ed. 73.

Judgment affirmed. It follows that if such acts be of a character to give a right of action against the corporation in forin appropriate for the al.

(85 Vt. 115) lowance of punitive damages, and, as in the

STATE V. AVERILL. case before us, the evidence affords a prop

(Supreme Court of Vermont. Franklin. basis therefor, they may be awarded.

Oct. 9, 1911.) [17] The plaintiff's husband was permitted 1. HOMICIDE (8 158*) – EVIDENCE – THREATS. to testify his opinion as to amount of dam-threats by accused to kill deceased are admis

In a prosecution for homicide, previous ages to her house, resulting from the boards sible to show the state of accused's mind, his blown against it. The defendant objected intent to kill, and his malice against deceased thereto solely upon the ground that opinion the threats, in point of time, relating only to

at the time of the homicide; the remoteness of evidence is not admissible for that purpose. the weight of the evidence, and not to its adThe evidence shows the injuries to the house, missibility. So caused, to be in general the smashing of [Ed. Note.—For other_cases, see Homicide, windows, the jamming and splitting of Cent. Dig. && 293–296; Dec. Õig. $ 158.*] clapboards, in different places on the house, 2. HOMICIDE (8 158*)-PREVIOUS THREATS

EVIDENCE. the breaking of a hole or holes in the roof

In a prosecution for homicide, evidence of of the porch, and the porch from the side prior threats by accused to kill deceased was of the house. The general rule in this not objectionable as an attack on accused's state is against the admission of this class character. of evidence for such purpose. Cavendish v. Cent. Dig. 8 293–296; Dec. Dig. § 158.*]

[Ed. Note.-For other_cases, see Homicide, Troy, 41 Vt. 99; Bates v. Sharon, 45 Vt. 475; State v. Ward, 61 Vt. 153, 17 'Atl. 483; 3. CRIMINAL Law ($ 376*)—EVIDENCE-CHAB

ACTER OF ACCUSED. Bain v. Cushman, 60 Vt. 343, 15 Atl. 171. The rule that prosecutor cannot impeach Yet this rule has its exceptions, one of the character of accused until accused has adwhich is stated and was applied in the for- duced evidence to support it refers only to the

general character restricted to the trait in ismer case. Where the witness had the means sue, and does not apply to evidence otherwise of personal observation, and the facts and having a legitimate bearing on the guilt of accircumstances which lead his mind to a

cused. conclusion are incapable of being detailed Law, Cent. Dig. 88 836-839, 841, 843; Dec.

[Ed. Note. For other cases, see Criminal and described so as to enable any one but Dig. '$ 376.*] the observer himself to form an intelligent 4. WITNESSES (8 37*)—COMPETENCY-CONVERconclusion from them, the witness is often SATIONS. allowed to add his opinion, or conclusion.

That a witness did not hear all that acWe think the present case in the respect did not render her incompetent to testify to

cused said in a prior conversation with deceased named falls within this exception to the gen- the part of the conversation she did hear. eral rule rather than within the rule itself, [Ed. Note. For other cases, see Witnesses, and that therein the ruling of the trial court Cent. Dig. $ 85; Dec. Dig. § 37.*] was without error.

5. CRIMINAL LAW ($ 448*) - CONCLUSION OF [18] Subject to objection, the plaintiff's

WITNESS.

Where a witness had fully stated all that husband was permitted to testify that after accused said and did at a particular time and the first injury to the house by the boards I 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

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