Battrell v. Ohio River R. Co

• Court: Supreme Court of West Virginia
• Writing for the Court: Brannon
• Citation: 34 W.Va. 232,12 S.E. 699
• Parties: Battrell . v. Ohio River R. Co.
• Decision Date: 28 November 1890

12 S.E. 699
34 W.Va. 232

Battrell .
v.
Ohio River R. Co.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1890.

Pleading—Recital—Dam ages—Province or Jury.

1. It is a general rule of pleading that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated, and not by way of recital. Yet, when the participial form of verbs is used in stating such facts, instead of tenses conveying the sense of more positive statement, while such form of statement is not to be commended, still, if it is plain that the facts are intended to be positively stated and alleged, such mode of allegation would not render the pleading bad on demurrer.

2. A case not falling within the rule against pleading with a quod cum, or by way of recital.

3. The assessment of damages is peculiarly the province of the jury, and where there is a motion to set aside a verdict, because of excessive or inadequate damages, the court must not encroach upon such province of the jury, save in strong cases of injustice. No mere difference of opinion, however decided, justifies an interference with the verdict for this cause, but the amount must be so out of the way as to evince passion, prejudice, partiality, or corruption in the jury.

English, J., dissenting.

(Syllabus by the Court.)

Error and supersedeas to the circuit court, Mason county.

V. B. Archer, for plaintiff in error.

Hogg & Heller, for defendant in error.

Brannon, J. This is a writ of error to a judgment of the circuit court of Mason county brought by the Ohio River Railroad Company to reverse said judgment, which was rendered against it in favor of John W. Battrell. The action was for damage to plaintiff as owner of a lot from the construction and operation by defendant of its railroad in an alley, on which said lot abutted, in the town of West Columbia.

The first assignment of error is that the court overruled a demurrer to the declaration. Counsel for appellant points out as a defect in the declaration that, by way of recital, it alleges: "The plaintiff being then and there, and still being, owner in fee of the land in said alley, to the median line thereof, and the plaintiff, by reason of the acts and doings aforesaid of the defendant, being cut off and deprived of access to the back part of his said lot over and by means of said alley." Whereas it should have positively and directly made those averments, because it is a general rule in pleading that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated. 3 Rob. Pr. (New) 530; Burton v. Hansford, 10 W. Va. 470.

The rule of pleading forbidding the statement of facts constituting the cause of action with a quod cum, that is, "for that

[12 S.E. 700]

whereas, " which is purely by way of recital, is centuries old, and though technical, and, in my judgment, a stigma upon the common law, has been persistently insisted upon in early Virginia cases. In Ballard v. Leaveil, 5 Call, 531, a verdict was overthrown because of such defect. In Hord v. Dishman, 2 Hen.&M. 595, the declaration was held bad in substance because of it, on general demurrer. And in Moore v. Dawney, 3 Hen. & M. 127, though there was no demurrer, it was held bad after verdict. The rule applied to actions of trespass or case for torts. Lomax v. Hord, 3 Hen. & M. 271; Donaghe v. Rankin, 4 Munf. 261. This defect is now cured after verdict by our statute of jeofails, providing that no judgment shall be reversed for any defect, imperfection, or omission in pleadings which might have been, but was not, taken advantage of by demurrer. Code 1887, c. 134, § 3. It might be thought that before verdict, on demurrer, this defect would be cured by our statute, (Code 1887, c. 125, § 29,) that "on demurrer, unless it be a plea in abatement, the court shall not regard any defect or imperfection in the declaration or pleading, whether it has heretofore been deemed mispleading, insufficient pleading, or not, unless there be omitted something so essential to the action or defense that judgment according to law and the very right of the case cannot be given; " and I do not for myself now say that such defect would not be cured by that section properly construed, looking to the object the legislature had in view in its enactment, —to avoid the defeat of justice, the failure and protraction of litigation by merely technical infirmities in pleadings. But in Burton v. Hansford, 10 W. Va. 475, Judge Green says that when there is a demurrer the rule against statement by way of recital remains unchanged by any statute later than the above Virginia decisions, for the provision above quoted was in force when these decisions were made. Perhaps we may consider this opinion of Judge Green as obiter as applied to torts, because he held the rule not applicable to general indebitatus assumpsit count, the case then in hand, and what he said as to the application of the rule in trespass and case was outside the case before the court. Minor, in 4 Institutes, 1123, supports Judge Green by saying that pleading by way of recital "is a flagrant error in pleading, still certainly fatal on demurrer, and formerly in arrest of judgment also, and on writ of error." From the fact that the statute was not applied in the several Virginia cases cited above, and from the notes of revisors to Code of 1849, (see 11 W. Va. 107,) it would seem that the office of the statute is to cure only those defects in pleading constituting ground for special demurrers, which are by it abolished. Coyle v. Railroad Co., 11 W. Va. 94; Sweeney v. Baker, 13 W. Va. 201. According to 1 Chit. Pl. 402, this recital pleading was bad on special demurrer, and, if it could only be taken advantage of in that way, it would not be material since the abolition of special demurrers; but in Hord v. Dishman, 2 Hen. & M. 595, it was held bad on general demurrer,...