Barnum v. Baltimore

• Citation: 5 W.Va. 10
• Court: Supreme Court of West Virginia
• Decision Date: 31 July 1871
• Parties: Allen S. Barnum v. Baltimore and Ohio Railroad Company.

5 W.Va. 10

Allen S. Barnum

v.Baltimore and Ohio Railroad Company.

Supreme Court of Appeals of West Virginia.

July Term, 1871.

1. An action oi trespass on the case may be maintained (by reason of the Statute,

Code 1860. ch. 148, sec. 7») in any case in which trespass will lie. But the converse of the proposition is not provided for by Statute. Trespass, therefore, remains as at the common law.

2. Where a party is ejected forcibly from a car, and brings an action of trespass, and

in his declaration alleges secondary or consequential damages by reason of detention, &c, a demurrer is properly sustained, as the declaration shows a case in which trespass at the common law will not lie, that action being always for Immediate and direct injury.

3. In an action for being ejected from a railroad car; it is not sufficient to aver generally that the party was wrongfully ejected, but it must be sufficiently set forth that his expulsion was improper and wrongful; i. e.. being rightfully in the car he was illegally expelled.

This was an action of trespass, brought to February rules, 1866, in the circuit court of Wood county.

As the questions determined here arose upon the demurrer to the declaration, it is here inserted:

"The Baltimore and Ohio Railroad Company were summoned in said circuit court to February rules, 1866, to answer the said Allen S. Barnum of a plea of trespass.

And therefore, the said plaintiff complains for that on the sixth day of January, 1866, in a certain car belonging to said defendants (which are a body corporate created by the Legislature of the State of Maryland, but owning a railroad and property in the State of West Virginia), to wit, in a certain car attached to the mail train running on said day, between certain places, among others between the town of Grafton and the city of Parkersburg, both in the State of West Virginia; the said defendants then and there, by their servant or agent, to wit, by the conductor of said mail train, acting under and by reason of the orders, directions, and commands of the said defendants, forcibly and wrongfully ejected, expelled, and put out the said plaintiff from the said car, and from the use, occupation, and enjoyment of the same, at a certain station on the route of the said Baltimore and Ohio Railroad, to wit, at the station known as Eaton's Station, in the county of Wood and State of West Virginia, by reason whereof the said plaintiff was detained and obliged to remain at said station for a great space of time, to wit, for the space of about twelve hours, and did suffer greatly from cold, hunger, anxiety, and fatigue, and thereby became and was sick, sore, lame, and disordered, and so remained and continued thence, hitherto, during all of which time, he, the said Allen S. Barnum, thereby suffered and underwent great pain and anxiety, and was hindered and prevented from transacting and performing his necessary affairs and business, by him during that time to be transacted and performed; and also, thereby, the said Allen S. Barnum was forced and obliged to, and did necessarily pay, lay out, and expend a large sum of money, to wit, the sum of two hundred dollars, in and about endeavoring to be cured of the sickness, soreness, lameness, and disorder aforesaid. And other wrongs the said defendants then and there did against the peace ot the State of West Virginia, and to the damage of the said Allen S. Barnum of ten thousand dollars; and therefore said plaintiff brings this suit."

The court below sustained the demurrer, and the plaintiff appealed.

Sands for the plaintiff in error.

Lee for the defendant in error.

For the defendant and appellee it is insisted that the judgment was right, and that the declaration was not sufficient in law. And in support thereof defendant will rely on the following points:

1. That for the grievances complained of in the declaration the remedy was by action on the case and not in trespass.

2. That if trespass could be maintained by the grievances stated in the declaration, yet that the declaration is fatally defective in failing to show that the plaintiff had a right to recover in any form of action whatever.

1. That the action should have been in case and not in trespass.

If the injury complained of be not the immediate consequence of the act imputed to the defendant but only secondary or consequential, it is well settled that the action must be case and not trespass. The latter lies where the injury from the act complained of is direct and immediate. If it be subsequently ensuing, secondary or consequential, the proper remedy is in case; 2 Tuck. Comn. (57); Ibid. (93); Scott vs. Shepherd, 2 Bl. Rep., 892; Winslow vs. Beat, 6 Call., 44; Taylor vs. Rainbow, 2 H. & M., 423; Shaver vs. Dougherty, 6 Munf., 110.

Now upon looking to the declaration it will be found that all the injuries which the plaintiff' complains of were purely scondary and consequential to the act imputed to the defendant. The complaint is not for having been beaten, bruised or wounded by the defendant, or of any direct or immediate personal injury from the act of the defendant. Take the whole declaration together and we find that what the plaintiff complains of is that in consequence of the defendant refusing to transport him over its road on its cars, and putting him off of the train, he was compelled to remain at Eaton's Station for twelve hours, and during that time suffered from cold, hunger and fatigue, and that in consequence of this exposure and detention he became sick and disordered, and whilst so, suffered much pain, and was hindered from attending to his business, and was put to expense in providing and using the means necessary to his recovery. Plainly, therefore, the action is for the consequential damage accruing to the plaintiff in consequence of the defendant's refusal to transport him over its road and compelling him to leave the train, and should have been upon the case and not in trespass.

If it be said that the charge is ejecting the plaintiff from the car, vi et armis, amounting to an assault and battery, the answer is that no battery nor even an assault is charged, and if both had been, although the plaintiff may have sued the conductor who used the force for the assault aud battery, he cannot maintain the action against the corporation. A corporation can no more commit an assault and battery than it can treason, felony or perjury. It is true that according to the course of modern decisions, a corporation may be sued for various trespasses committed by its authority or command, yet assault and battery is not of the number. A corporation can neither maintain nor be made defendant to an action for a battery or such like personal injuries, for a corporation can neither beat nor be beaten in its body politic; 1 Black. Comm., 503; 1 Wooddison's Lect., 494; Angell on Corporations, § 388. And the point was expressly decided in Orr vs. Bank of the United States, 1 Hamm. in (Ohio) Reports, 28. In that case Burnet, J., in an able opinion from which there was no dissent, reviewed all the authorities on the point and comes to the conclusion that whilst there are many cases in which trespass can be maintained against a corporation, yet that an action for assault and battery will not lie against it. The conductor or other servant of the company who committed the assault, may be sued in assault and battery, but if the company is to be held liable for the injury occasioned by his act, it must be by an action on the case and not in trespass. (Angell on Carriers, § 603. See also Angell on Corp., § 386, 387, 388.)

It may be said that we have a statute which provides that in any case in which an action of trespass will lie, an action of trespass on the case may be maintained. This is true; but the converse of the proposition is not. The statute does not provide that where trespass on the case will lie, an action of trespass may be maintained. Whilst the range of the action of trespass on the case is greatly extended by the statute, that of the action of trespass is left exactly where it was at common law, and no action of trespass can be now maintained since the statute that might not have been maintained at common law before the statute was...