71 A. 188 (Vt. 1908)
On November 13, 1904, the plaintiff was sailing a loaded sloop upon Lake Champlain accompanied by his wife and two minor children when a sudden and violent tempest arose that placed the vessel along with its property and occupants in great danger of destruction.1
The defendant owned an island in the lake together with a dock attached to it, and the island and dock were at that time in the charge of the defendant’s servant.2 To save the sloop and those aboard from destruction or injury, the plaintiff moored the sloop to the defendant’s dock.3
The defendant’s servant then unmoored the sloop, which was subsequently driven upon the shore by the tempest without any fault on the plaintiff’s part.4 As a result the sloop and its contents were destroyed, and the plaintiff along with his wife and children were cast into the lake and upon the shore where they received injuries.5
The plaintiff brought an action against the defendant setting forth these events in two counts.6 One count alleged trespass by the defendant through his servant who wilfully and designedly unmoored the sloop with force and arms.7 The other alleged that the defendant through his servant negligently and wrongfully unmoored the sloop in breach of a duty to permit the mooring to continue during the tempest.8 Both counts were met with general demurrers, and the matter came before the Supreme Court of Vermont for resolution of the resulting issues.9
Whether the plaintiff's declaration sufficiently alleges a necessity for mooring to the defendant's dock without negativing other possible mooring locations?10
The doctrine of necessity justifies an entry upon land or interference with property to preserve human life or goods from imminent peril such as a sudden tempest. A pleading that avers the stress of the tempest compelled mooring to the specific dock states a complete necessity. There is no requirement to negative the existence of alternative mooring locations. The details creating the necessity are matters of proof rather than pleading.11
Yes. The established facts show that on November 13, 1904, a sudden and violent tempest arose while the plaintiff sailed the loaded sloop with his wife and two minor children on Lake Champlain, placing the vessel, property, and occupants in great danger of destruction. To save these from destruction or injury the plaintiff moored the sloop to the defendant's dock. The declaration avers this necessity completely by alleging that the stress of the tempest compelled mooring to that dock, so the rule does not require negativing other possible locations in the counts.12
The declaration sufficiently alleges the necessity for mooring to the defendant's dock, and the demurrers are not sustained on this ground.13
Whether the counts sufficiently allege that the defendant's servant acted within the scope of his employment in unmooring the sloop?14
An allegation that the defendant acted by his servant in unmooring the sloop, when the servant is alleged to have been in charge of the island and dock, necessarily implies that the servant was acting within the scope of employment, and the words describing the manner of the act as wilful or negligent are applied to the defendant through the servant rather than to any personal wrongful purpose of the servant.15
Yes. The established facts establish that the defendant owned the island and dock then in charge of his servant, and the counts allege that the defendant by his servant unmoored the sloop, either wilfully and designedly with force and arms or negligently, carelessly and wrongfully in breach of duty. This structure of allegation implies the servant acted within the scope of employment as the person in charge of the dock.16
The counts sufficiently allege that the servant acted within the scope of his employment, and the demurrers are not sustained on this ground either.17