Kennedy v. Morgan

The opinion of the court was delivered by Powers, J. Negligence is a shortage of legal duty. All facts essential to the creation of the duty must be alleged in a declaration charging negligence upon such facts. If the facts stated in the declaration do not raise the duty, the duty cannot be established by proof of other facts not stated. Allegation as well as proof is the foundation of a right of recovery. If the pleader merely alleges the duty in his declaration, he states a conclusion of law; whereas the elementary rule is, that the facts from which the duty springs must be spread upon the record so that the court can see that the duty is made out. No intendments are made in favor of a declaration challenged by a demurrer. [49] The defendant was engaged in a lawful work. No relation, obligation, or duty, to the plaintiff’s son, is alleged; nor does it appear that he had any knowledge of the son’s presence in the vicinity of his work. Nothing actionable then is disclosed in the declaration. 2 Addison Torts, 1147; Gould Pl. c. 3, s. 7; Fay v. Kent, 55 Vt. 557. There was no error in the judgment below; but the same is pro forma reversed and repleader awarded.