Bowles v. City Of Richmond

• Decision Date: 01 October 1925
• Citation: 129 S.E. 489
• Parties: BOWLES . v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

129 S.E. 489

BOWLES .

v.CITY OF RICHMOND.

Special Court of Appeals of Virginia.

Oct. 1, 1925.

Error to Circuit Court of City of Richmond.

Action by Louise E. Bowles against the City of Richmond. Demurrer to replication was sustained, and case dismissed, and plaintiff brings error. Reversed and remanded.

Haw & Haw, of Richmond, and O. L. Cole, of West Point, for plaintiff in error.

James E. Cannon and Richmond T. Lacy, Jr., both of Richmond, for defendant in error.

CHRISTIAN, J. The plaintiff, Louise E. Bowles, proceeded by motion for damages in the circuit court for the city of Richmond against the city of Richmond, and the Richmond Fredricksburg & Potomac Railroad Company for injuries received by her by reason of the negligent failure of the defendants to properly safeguard the approach on Broad street to the old bridge over the belt line of the railroad company, where the approach had been cut down and abandoned temporarily for a detour to a new bridge at grade with the street. The city of Richmond filed a special plea, which averred that the plaintiff had not within six months after the cause of action accrued filed with the city attorney a written statement of the particulars of the accident, verified by the oath of the plaintiff or her agent or attorney, as required by the city charter.

The plaintiff objected to the filing of the city's plea and moved to strike it out, because the provision in the city charter was unconstitutional, which objection and motion the court overruled, and the plaintiff excepted.

The defendant railroad company did not plead to the plaintiff's motion, whereupon the plaintiff filed her replication to the defendant city's plea.

The city demurred to her replication, in which she joined, and upon argument the court sustained its demurrer and ordered that the action of the plaintiff be dismissed as to the defendant the city of Richmond. Nothing was done in the case against the railroad company. The plaintiff sued out a writ of error to this ruling of the court, and the case is here for review on these two points.

Counsel for the city, in its reply brief, makes the point that the writ of error should be dismissed, as improvidently awarded, for the reason that no action of any kind has been taken in reference to its codefendant, the railroad company, therefore the judgment upon the demurrer was not final, and the writ of error should be dismissed. He cites as authority for this position Wells v. Jackson, 3 Munf. (17 Va.) 458.

Section 19g of the charter of the city of Richmond (Acts of Assembly 1918, p. 182) makes it compulsory in every action to recover damages for any negligence in the construction or maintenance of any of its streets, alleys, or parks, where any person is liable with the city, that every such person shall be joined in such action against the city, and where there is a verdict or judgment against the city as well as the other defendant, it shall be ascertained either by the court or jury which of the defendants is primarily liable for the damages assessed. This charter provision makes a change in common-law rules of procedure, so far as suits for negligent injuries against the city are concerned.

At common law, in case of joint wrongs, the plaintiff may, at his election, sue all or any one, or any intermediate number, of the wrongdoers; but, in order to sue all, there must be a joint wrong. In an action against several wrongdoers for a joint wrong, there can be only one final judgment upon the merits. There may be different writs of inquiry executed against different defendants, or the jury may find for differ-ent amounts against the defendants, but the plaintiff still retains his election to stay execution and proceed to judgment against all, then elect to accept the highest judgment, or he may dismiss the proceeding as to those defendants against whom judgment has not been taken. Until he has dismissed the case as to the joint wrongdoers against whom he has no judgment, or signifies an intention to prosecute the action to judgment against them, as all are jointly liable there is no final judgment; therefore there could be no appeal. Wells v. Jackson, supra; Ammonett v. Harris & Turpin, 1 Hen. & M. (11 Va.) 488. The principle of law above mentioned does not apply to the instant case, as there is no joint interest between the defendants in the matters decided by the circuit court, nor does it relate to the merits of the case; therefore the judgment is final as to the city, and the writ of error properly here.

The provision of the city charter (section 19g, Acts 1918, p. 182) which was the basis of the city's plea, is as follows:

"No action shall be maintained against the said city for damages for an injury to any person or property alleged to have been sustained by reason of...