The cause of action alleged here was that the defendants in their official capacity as Highway Commissioners, so wrongfully and negligently graded and ditched certain highways as to divert improperly the surface and rain water, etc., upon the lands of the plaintiff, causing the same to flow in a direction and with a force different and greater than it would otherwise have done, whereby the plaintiff was damaged, etc.
One question of some difficulty and upon which complaint is now made as to the ruling of the court is, whether the plaintiff can recover against one of the defendants for an act of the nature set out in the declaration, but' not done in his official capacity, nor recognized nor approved by the others, or either' of them.
The trial court held that no recovery could be had for any such act not concurred in by a majority of the defendants, and that only those so concurring in and responsible for the act could be made liable. The question is not wholly free from doubt, but we are disposed to agree with this view.
The declaration seems to have been framed for the purpose of testing the liability of defendants for acts done by them in their official capacity. It would not be competent, under such a declaration, to recover against one alone for an act done in his personal capacity not directed or assented to by the Board. It is, of course, true that in. actions for tort the verdict may be against a part or all of the defendants, but it must appear that those who are convicted are guilty of the act set out in the declaration, or so much of it as will be necessary to constitute a cause of action.
Upon the main question whether the plaintiff was injured as alleged by the act of defendants there was conflict in the testimony. We see no sufficient reason for saying the verdict, which was for the defendants, is against the evidence.
The instructions given by the court stated the law with sufficient accuracy, and. while a great number asked by the plaintiff were refused, to some of which no particular objection can be urged, yet we find that in those given was laid down all that was necessary to advise the jury of the legal principles involved. It would have been unwise to give all the instructions, twenty-eight in number, asked by the plaintiff, if they had all been good. A few clear, brief propositions were all the case required. Sundry exceptions were saved to the .rulings of the court during the tidal.
Among others now urged is that the defendants having moved to exclude the evidence of plaintiff, and being overruled, were permitted to offer testimony in defense. Strictly speaking, the motion which was interposed at the close of plaintiff’s case was to exclude certain items of the plaintiff’s evidence and to make it broad enough to cover what he was endeavoring to indicate. Counsel said he would move to exclude all. Pending the argument, plaintiff amended the declaration and the court excluded some of the evidence, but denied the motion as to the residue, and permitted defendants to proceed with their defense. Even if the motion can be considered as an oral demurrer to the evidence we hold the court might, in its discretion, have allowed the defense to be made. Other objections have been argued which we deem it not necessary to refer to in detail. The case mainly depended upon questions of facts which were examined very fully before the jury, and unless it were quite clear that substantial error had been committed to the prejudice of the appellants this court ought not to interfere.
The judgment will be affirmed.
Affirmed.