Battrell v. Ohio River R'y Co. *(Holt

Decision Date28 November 1890
Citation34 W.Va. 232
PartiesBattrell v. Ohio River R'y Co.*(Holt, Judge, absent.)-
CourtWest Virginia Supreme Court
1. Declaration Plea ding Recital.

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 a verb 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 does not render the pleading bad on demurrer.

2. Declaration Plea ding Recital.

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

3. Damages Jury,

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.

V. B. Archer for plaintiff in error cited:

3 Rob. Prac. (New) 530, 531; 10 W. Va. 470; 2 Show. 287; 3 It. & M. 271; 4 Munf. 261; 1 Chitt. PL (16th Ed.) 260, 402, 403 (t. p.); 27 W. Va, 306 et seq.; 23 W. Va, 407 p't 6 Syll. 435, 436; 10 S. E. Rep. 18; 24 W. Va 361;

Hogg § Belter for appellee cited:

Code c. 125, s. 9, 29; 6 W. Va. 339 p't 19 Syll.; 9 W. Va. 262; 27 W. Va. 288; 6 W. Va. 364; 7 W. Va 1; 82 W. Va. 370; 9 W. Va. 262; 25 W. Va. 692 p't 7 Syll.; 8 W Va. 515 p't 2 Syll.; 26 W. Va. 345, p't 8 Syll.; 1 Greenl. Ev. §§ 49, 160.

Brannon, Judge:

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 the fact, 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 bo directly and distinctly stated. 8 Rob. Br. (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 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. Leavell, 5 Call, 531, a verdict was overthrown because of such defect. In Hord, v. Dlshman, 2 Hen. & M. 595, the declaration was held bad in substance because of it on general demurrer. And in Moore v. Dawney, 8 Ken. & M. 127, though there was no demurrer, it was held bad after verdict. The rule applied to actions of trespass or case for torts. Lot it ax v. Hord, 8 lien. & M. 271;; Bonaghe 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, s. 3. It might be thought that

30 before verdict, on demurrer, this defect would be cured by our statute (Code 1887, e. 125, s. 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 lias heretofore been deemed mispleading, insufficient pleading or not, unless there be omitted something so essential to the action or defence, that judgment according to law and the very right of the case can not 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 ride 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 a 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 ease 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 re visors 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 y. Baker, 13 W. Va. 201. According to 1 Chili. 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 JTord v. Dishman, 2 Hen. &. M. 595, it was held bad on general demurrer, and, even after verdict without demurrer, in Moore v. Downey, 3 lien. & M. 127.

But I do not regard the present ease as foiling under this objection. The tehnical rule just spoken of was applicable to the case of the quod cum, "whereas," when used in the statement of the facts constituting the cause of action. Objectionable as it is, it should not be extended to cases not clearly within it to the defeat of justice. The language objected to is: "The plaintiff being then and there, and still being, the owner, * * * and the plaintiff, by reason of the acts and doings aforesaid of the said defendant, being cut off and deprived of access to the back part of his said lot over and by means of said alley." Here the statement is not under a, whereas, nor exactly by any mode of recital, and is only less direct and positive in statement by reason of the use of the participle "being," instead of using the imperfect and present tenses of the indicative mood of the verb "to be," so as to read "the plaintiff was then and there, and still is, owner in fee," and the perfect tense "has been" where the word "being" occurs in the third place, so as to read "has been cutoff." It is very common to use participial clauses or the participial form of verbs where the intention is to make a positive statement or predication, and though not so strong or emphatic as the verb would be in other tenses of the indicative mood, and not to be commended in pleading where positive averment is intended, yet the meaning is plain, and it is not technically by way of recital. See Gibson's Case, 2 Va. Cas. Ill; 1 Bish. Cr. Pro. ss. 556-558. This part of the declaration is not strictly the gist of the action, not the statement of the defendant's act, and 1 note that in Moore v. Dawney, supra, the syllabus says "that part of the declaration stating facts which are the gist of the action must not be laid with a 'whereas.' "

The declaration elsewdicre, by positive statement, states that plaintiff was owner in fee of the lot, and occupying and using it as a residence free from obstruction, obstacles, interferences or hindrances until the acts of the defendant specified as the cause of action; that the defendant, while the plaintiff was so owner in possession, without his consent took possession of, and appropriated to its use the alley adjoining, and built thereon its railroad, laying its track on it, and used it as such, running its ears over it, to the great and irreparable injury and damage of plaintiff, without compensating him for such injury and damage, without condemning the land lying in such passage-way or alley; that until such aets plaintiff used and enjoyed said alley of right as appurtenant to bis said lot in gaining access to said premises; and that by reason of the aets and doings of the defendant the plaintiff lost the use and enjoyment of the stable and coal-house and smoke-house on said premises, and suffered damages and injuries in other respects to the premises. And after this positive statement of the other injuries there is a specification of them by the language: "The said other injuries, consisting of the great increase of liability of loss of buildings on said premises from fire, by reason of the proximity of the defendant's railway track," and locomotives on it, thereby increasing cost of insurance to such extent as to render it practically impossible for plaintiff to obtain insurance, and to cause said buildings to be practically valueless, and to depreciate the property more than two-thirds. Thus, other clauses of the declaration than the one in question pointed...

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