Carper v. Montgomery Ward & Co

Decision Date15 March 1941
Docket NumberC. C. No. 638.
Citation13 S.E.2d 643
CourtWest Virginia Supreme Court
PartiesCARPER, for Use and Benefit of PHCENIX ASSUR. CO., Limited, OF LONDON. v. MONTGOMERY WARD & CO.

Syllabus by the Court.

1. A court cannot take judicial notice of the record in another action or suit, whether in the same or another court. The record must be either pleaded or given in evidence.

2. A special plea to a declaration setting up as a bar a former subsisting judgment on the merits between the same parties, or their privies, upon the same cause of action, is good on demurrer.

Certified from Circuit Court, Upshur County.

Action of trespass on the case by Hazel Carper, for the Use and Benefit of the Phoenix Assurance Company, Limited, of London, against Montgomery Ward & Co. to recover damages for the destruction of a home as the result of defendant's alleged careless, improper, and negligent installation of a heating furnace, pipes, and other parts. The circuit court overruled a demurrer to three special pleas to the declaration, and the ruling is certified.

Ruling affirmed.

Young & Young, of Buckhannon, for plaintiff.

Steptoe & Johnson and Oscar J. Andre, all of Clarksburg, and Myron B. Hymes, of Buckhannon, for defendant.

RILEY, Judge.

This certification involves the ruling of the Circuit Court of Upshur County in overruling the demurrer to three special pleas to the declaration in an action of trespass on the case, entitled Hazel Carper, for the Use and Benefit of Phoenix Assurance Company, Limited, of London, against Montgomery Ward & Company.

The purpose of this action, as disclosed by the declaration, is to recover damages for the destruction of Hazel Carper's home, which is alleged to have been caused by defendant's careless, improper and negligent installation of a heating furnace, pipes and other parts thereof. The declaration further alleges that the claim and right of action upon which this action is based were assigned by plaintiff on November 16, 1938, to the Phoenix Assurance Company, Limited, its successors and assigns.

The pleas to which the demurrer was overruled allege that plaintiff is precluded from prosecuting this action because the matters involved therein have already been adjudicated in a former action. The first plea alleges that a judgment was rendered in favor of plaintiff against the defendant in an action instituted for "the very same wrong and injury and for the very same act or acts of carelessness and negligence on the part of the defendant in the declaration in this action mentioned and alleged"; and the second and third pleas allege that said former action was instituted by the plaintiff in her own right upon the same facts, subject matter, acts of negligence, and issues as in the declaration in this action mentioned and alleged, namely, the alleged negligent, careless and improper installation by the defendant of the very same furnace, resulting in the very same fire, which allegedly damaged and destroyed plaintiff's home. The two last-mentioned pleas further allege that the judgment in the former action was affirmed by this court.

The declaration and pleas contain no allegation to the effect that the assignment to the insurance company was made pursuant to the provisions of an insurance policy, or that the former action, as stated in the briefs and oral arguments, was confined to damages for the destruction of the contents of the house. True, the record contains a stipulation to the effect that "the amount sought to be recovered in this action is based upon the amount paid by the Phoenix Assurance Company covering fire loss to the real estate of Hazel Carper, to which said company has been subrogated, and that her loss in the real estate was not totally covered by the insurance of said company, and Hazel Carper, in her own right, has no interest in the case at bar." However, under Code, 58-5-2, only questions arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, are certifiable. Consequently, we cannot, and do not, consider the contents of the stipulation.

Counsel in the presentation of this case have conceived the issue to be whether or not the plaintiff, Hazel Carper, by the assignment to the insurance company, has split a cause of action against defendant. It is argued on behalf of plaintiff that she had two separate causes of action growing out of the fire, one for the destruction of her house and the other for the contents thereof; and that she in a former action had successfully impleaded defendant on the damage to the personalty. Defendant, by counsel, on the other hand, asserts that plaintiff had a...

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11 cases
  • State ex rel. Lynn v. Eddy
    • United States
    • West Virginia Supreme Court
    • October 1, 1968
    ... ... Ellis, 142 W.Va. 340, 97 S.E.2d 33; Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729; Carper v. Montgomery Ward and Company, 123 W.Va. 177, 13 S.E.2d 643; Collins v. Treat, 108 W.Va. 443, 152 ... ...
  • Staubs v. State Workmen's Compensation Commissioner
    • United States
    • West Virginia Supreme Court
    • July 15, 1969
    ... ... reported that the patient's mental condition was much improved; that he had been working in ward 11 kitchen for more than a month; and that during the interview he was cooperative and friendly ... Ellis, 142 W.Va. 340, 97 S.E.2d 33; Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729; Carper v. Montgomery Ward and Company, 123 W.Va. 177, 13 S.E.2d 643; Marguerite Coal Company v. The Meadow ... ...
  • State ex rel. Porter v. Bivens, 12659
    • United States
    • West Virginia Supreme Court
    • June 27, 1967
    ... ... Ellis, 142 W.Va. 340, 97 S.E.2d 33; Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729; Carper v. Montgomery Ward and Company, 123 W.Va. 177, 13 S.E.2d 643; Collins v. Treat, 108 W.Va. 443, 152 ... ...
  • Mullens v. Lilly
    • United States
    • West Virginia Supreme Court
    • March 15, 1941
    ... ... decedent, he formed the opinion that decedent had no ... impairment of the mind. Dr. Ward Wylie, who operates the ... Wylie Hospital, first met decedent in 1931 or 1932. He ... treated ... ...
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