Boyd v. Mahone

• Decision Date: 28 May 1925
• Citation: 128 S.E. 259
• Court: Virginia Supreme Court
• Parties: BOYD, HIGGINS & GOFORTH, Inc. v. MAHONE.

128 S.E. 259

BOYD, HIGGINS & GOFORTH, Inc.

v.MAHONE.

Special Court of Appeals of Virginia.

May 28, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.]

Error to Circuit Court of City of Richmond.

Action by Mary A. Mahone against Boyd, Higgins & Goforth, Incorporated. Judgment for plaintiff, and defendant brings error. Affirmed.

John A. McRae, of Charlotte, N. C, and D. H. & Walter Leake and Scott & Buchanan, all of Richmond, for plaintiff in error.

Withers & Brown, of Danville, and McGuire, Riely & Eggleston, of Richmond, for defendant in error.

CHRISTIAN, J. On December 30, 1921, Boyd, Higgins & Goforth, Incorporated, a North Carolina corporation, was under contract with Geo. P. Coleman, state highway commissioner, to build about one mile and a half of concrete road in Pittsylvania county; the road to begin at Sandy river bridge in said county and extend in an easterly direction over Sandy creek bridge (which latter bridge was not in the contract and specifications) to the corporate limits of the city of Danville. The work was practically completed, but two or three weeks prior to December 30, 1921, the engineer in charge for the highway commissioner, in order to prevent the public from using the road, and as the Sandy creek bridge was no longer necessary for the use of the contractor, had the flooring of that bridge removed and both ends of the bridge barricaded.

On the date above mentioned, about 9:30 o'clock at night the plaintiff, with Miss Brown, both guests of W. R. Harrison, were coming from Martinsville to Danville in his Ford coupé, which he was driving, and when he came to the Sandy river bridge he saw no detour signs, nor any barricades or danger signals, so proceeded to take the new concrete road to Danville. When the machine got within a few feet of Sandy creek bridge, there being no barricade at that end of the bridge or red light upon either end of the bridge, the driver discovered that the floorof the bridge had been removed, but too late to stop his car, and, to prevent plunging into the creek, ran his car into the left girder of the bridge in order to save himself and his guests, but the car turned over and fell down the embankment, pinning the plaintiff under the car and seriously injuring her. Under the contract it was the duty of the defendant to establish and maintain barricades, danger warnings, and detour signs on said road wherever same were required for the safety of the public. This duty the defendant claimed to have performed, and further that the plaintiff was guilty of contributory negligence in riding in the car without protest while being driven at an illegal rate of speed, which was the proximate cause of her injury.

There was a sharp conflict in the evidence upon every fact necessary to be established by the plaintiff to maintain the issue upon her part, as well as the defendant's allegations of contributory negligence. After the jury had been instructed by the court and the case argued by counsel, it retired to its room, and after some time returned into court with a verdict for the plaintiff, and assessed her damages at $2,000. Thereupon the defendant, by counsel, moved the court to set aside said verdict on the following grounds:

"That it was contrary to the law and the evidence; was without evidence to support it; because of errors committed by the court upon the trial on admitting certain evidence for the plaintiff and in refusing to admit certain evidence for the defendant; and for errors in giving and refusing instructions."

The court overruled this motion for a new trial, and entered up judgment upon the verdict for the plaintiff.

Thereupon the case was brought before this court by writ of error for errors assigned in its petition, which will be considered in sequence, so far as necessary to a just determination of the law and merits of the case.

Boyd, Higgins & Goforth, Incorporated, is a North Carolina corporation, and the plaintiff proceeded against it in the circuit court of Pittsylvania county by attachment, and made Geo. P. Coleman, state highway commissioner, a party defendant, to attach the reserved percentage provided by the contract to be retained until the work was completed according to specifications. Coleman filed his answer in which he stated that there was a retained percentage amounting to about $5,000 in possession of the treasurer of Virginia, payable 90 days after the contractor had fulfilled his contract and the work had been accepted. Thereupon the attachment was amended, and the state treasurer made a party thereto. Upon the maturity of the amended attachment, on motion of the plaintiff and without objection from the defendant, the venue of the proceeding was changed, and the case removed to the circuit court of the city of Richmond as provided by statute.

Upon the calling of this case for trial (it having been continued twice previously at the request of the defendant company and with consent of the plaintiff) the defendant moved the court to quash the petition and attachment on the ground that the court was without jurisdiction of the subject-matter, and that the petition did not state a case upon which there could be a recovery. The motion was overruled by the court, to which action of the court the defendant excepted. Hence the first inquiry is into the court's jurisdiction or power to determine the rights of the parties.

This was a proceeding in rem against a nonresident corporation, by attachment of a debt due it by the state, and, if the fund due is not subject to attachment, the court's jurisdiction must fail.

The defendant contends that its reserved fund in the hands of the state treasurer is a public fund, hence not subject to attachment, and cites Rollo v. Andes Ins. Co., 23 Grat. (64 Va.) 509, 14 Am. Rep. 147, as authority to sustain its position. In that casa a nonresident creditor of the foreign insurance company undertook to subject by garnishment the bonds deposited by the company with the state treasurer under the statute for the protection of the policy holders of this state, and, when the claims of the resident policy holders were satisfied, then to return the bonds or the balance of the proceeds thereof to the company. The court held the bonds were an express trust created by statute for the benefit of resident policy holders in the possession of the treasurer, and that a state officer could not be sued in regard to the bonds without consent of the sovereign, and permission had not been given to nonresidents to sue the treasurer in reference thereto; therefore the garnishment was properly dismissed. This same rule of law was reaffirmed in the case of Buck v. Guarantors' Co., 97 Va. 720, 34 S. E. 950. But in the case of the Universal Life Insurance Co. v. Cogbill, 30 Grat. (71 Va.) 77, which was a suit in chancery to subject the bonds of an insolvent insurance company, similarly held under the statute, to the repayment of premiums paid on policies by residents of Virginia, the court held that the treasurer was a proper party to the suit, and by virtue of section 7, c. 44, Code 1873, which is similar to subsection 6, § 6049, Code 1919, that the circuit court of the city of Richmond had exclusive jurisdiction for the trial of all cases where by the statute state officers and boards mentioned therein may be sued.

It is the duty and public policy of the state, as expressed in the decisions of the Supreme Court and the statute law, to pro-vide appropriate remedies by which home creditors or residents, having claims against a nonresident, may subject the assets or effects of the nonresidents to the payment of their debts or claims, when held by municipalities, state officers, or state boards, when such proceedings do not interfere with the functions of government. Portsmouth Gas Co. v. Sanford, ...