Louthood v. Town of Cambridge

115 A. 497, 95 Vt. 425, 1921 Vt. LEXIS 236

• Court: Supreme Court of Vermont
• Decided: November 1, 1921
• Status: Published

Opinions

Watson, C. J.

The plaintiff seeks to recover for alleged injuries caused by the insufficiency or want of repair of a bridge which the defendant town is liable to keep in repair. The amended complaint is challenged by demurrer, specifying as the reason that the notice given to the selectmen of the town, as set forth in the complaint, does not state the time of the occurrence of such injuries. The demurrer was overruled and the complaint adjudged sufficient. To this ruling an exception was allowed, and the cause passed to this Court before final judgment.

[1] The complaint alleges that on July 3, 1919, the plaintiff caused to be delivered to the selectmen of defendant town, a notice in writing, signed by her, in the words and figures following, and that no other notice was ever delivered to said selectmen or either of them. The notice, then set forth in full, dated July 3, 1919, states the time when the injuries were received, as ‘ ‘ at about ten o ’clock on Sunday night, June 15th ’ ’ — no year being stated.

Plaintiff argues, in effect, that since the notice is dated July 3, 1919, one would understand the phrase therein, “at about ten o’clock on Sunday night, June 15th,” to mean June 15, 1919, for one ‘ ‘ would have to go back six years to find another June 15th on Sunday”; and consequently that the notice is sufficient. But selectmen to whom a notice of this character is given, are not supposed to enter upon such calendarial reckoning to ascertain the time the injury was received, — the statute requires the time to be stated in the notice (G. L. 4617), and if not so stated it cannot be otherwise supplied. Underhill v. Washington, 46 Vt. 767. There was no reason why the year could not be specifically stated, and without it the notice showed no definite time of the occurrence. In this respect the notice in question is not materially different from the one involved in White v. Stowe, 54 Vt. 510, which for this reason (as well as others) was held to be insufficient. The only difference between the two, in stating the time the injury was received, is that the notice in the instant case states the day of the week, while that in the other ease mentioned did not; but this difference has no reference to the year. We see no reason for departing from the holding there had.

• [2, 3] Allegations of the notice given were unnecessary to the complaint (Kent v. Lincoln, 32 Vt. 591; Herrick v. Holland, 83 Vt. 502, 77 Atl. 6); yet, since such allegations, though surplusage, show the notice to have been so defective that the plaintiff had no cause of action, the complaint is bad on demurrer. Com. Dig. Pleader, c. 29. Mr. Tidd, speaking of the rules of pleading governing the statement of the cause of action, says ‘ ‘ surplusage will not vitiate, except where it defeats the action. ’’ 1 Tidd’s Pr. *451. And Mr. Chitty says: “It is a material part of the rule respecting surplus allegations, that if the party introducing them show, on the face of his own pleading, that he has no cause of action, his pleading will be defective.” 1 Chit. PI. *231. In such case “the superfluous matter cannot be rejected as immaterial; since it shows that the pleader has, according to his own statement, no cause of action, or no defence.” Gould’s Pl. Ch. Ill, § 171.

Since the failure to give a notice answering the requirements of the statute, is fatal to the plaintiff’s right of recovery, final judgment wall follow.

Judgment reversed, demurrer sustained, complaint adjudged insufficient, and judgment for defendant to recover its costs.