Clarke v. Ohio River R. Co.
| Decision Date | 18 December 1894 |
| Citation | 39 W.Va. 732 |
| Court | West Virginia Supreme Court |
| Parties | Clarke v. Ohio River R. Co. |
1. Declaration Amendment.
ended declaration is no departure from the original, un- less it introduce into the case a new substantive cause of action different from that declared upon, and different from that which the plaintiff intended to declare upon. It can not be allowed, if it be inconsistent with the nature of the original declaration or change the cause of action. Allegations may be changed, and others added; but they must relate to the same cause of action.
Declaration Amendment.
An amended declaration in an action by a land-owner against a railroad company for failure to build fences, farm crossings and cattle-guards may charge failures to build theni at other points than those specified in the original declaration without being in violation of the above rule.
Declaration-Amendment-Order Judgment.
A court can set aside at one term an interlocutory order made in the progress of the cause at a former term, but not a final judgment. An order, which merely sustaii s a demurrer to a declaration or strikes out a count or item of claim followed by no judgment as to it, is interlocutory in nature, and the count or item of claim may be re-instated in the declaration at a subsequent term.
Declaration Bill, of Particulars.
Section 46, c. 130 Code 1891, appliesas well to actions for torts as to actions on contracts. A statement of the particulars can not be required, where the declaration gives the grounds of action and particulars of claim with sufficient defiiiiteness to give the defendant notice thereof. It can be demanded only where the declaration is allowably under the law so general as not to apprise the defendant of the real cause of action. If the declaration can not be thus general consistently with law, demurrer is the remedy, not such statement of particulars.
Declaration Bill of Particulars.
Such statement of particulars should contain the grounds of action, not evidence.
Declaration Amendment.
A plea filed to the first declaration and not withdrawn will apply to an amended declaration.
Railroad Company Crossing Fences.
When a railroad company has put in, when building its railroad, a sufficient number of suitable farm crossings and cattleguards, it can not be required afterwards to ouild others at other places.
Railroad Company Crossing Fences.
When a railroad company has made gates in fences inclosing its track to afford access to a farm crossing, the mere presence of such crossing does not require cattle-guardes at the crossing, there being no fences there dividing fields.
9. Evidence Discretion of Court.
Whether a plaintiff shall be allowed to give further evidence, after defendant's evidence is closed, is within the discretion of the trial-court; and its exercise will rarely, if ever, be the ground of reversal by an appellate court. Clearly he is entitled to give evidence to rebut that of the defendant.
V. 13. Archer and D. II. Leonard for plaintiff in error:
I. Cattle guards not required at farm crossings. 45 Am. &
Eng. R. Cases 122; Thorn. Railroad Fences, etc.. 449, § 289; 80 111. 72; 20 Am. & Eng. R. Cases 458; 79 Mo. 504; 83 Mo. 496; 80 111. 72; 36 Wis. 45; 13 Barb. (X. Y.) 594.
II. Qar statute rests fee simple in company upon condemnation. Code, e. 42, s. 18.
III. Amendments must not introduce new matter. 21 W. Va. 412.
IV. Provisions of statute considered-with sec. 46, chap. 130. Code, c. 125, s. 4; Acts 1877, e. 66; Code, c. 125, s. 11, 62, 63, 64 and 65.
V. Where statute fails to designate place, or person to choose for
crossing. Thorn. R'd Fences & Priv. Cross. § 270.
VI. What is proper cattle guards. 11 Am. & Eng. R. Cases 480.
VII. -Gates or bar. Where. 7 Am. & Eng. Ency. Law 915; 80 111. 72; 85 Am. & Eng. R. Cases 184.
VIIL Measure of damages for failure to fence. 19 Am. & Eng. R. Cases 640.
IX. Cattle guards. 11 Am. & Eng. R. Cases 458.
X. Measure of damages for failure to construct farm crossings.
Thorn. R'd Fences and Priv. Cross, g 283. XL Agency and authority must be shown by plaintiff before proof of declarations or agreements. 28 Am. & Eng. R. Cases 467; 29 Am. & Eng. R, Cases 514; 62 Mich. 643; 100 Am. Dec. 78 and note.
XII. Duty to fence purely statutory. 34 W. Va. 200.
XIII. Definition of'amendment. 1 Am. & Eng. Ency. Law 546.
XIV. Object of amendment. 34 Am. Dec. 156.
XV. The writ governs. 3 11. & M. 502.
XVI. When amendment to be made, and of what to consist. 24 W. Va. 206. XVII. Cause of action Defined. And. L. Diet. 157; 83 X. Y. 160.
XVIII. Declaration may be amended by the writ. 2 Wash. 212.
XIX. Amendments must not be for additional claim or demand. b Pick. 303.
XX. Final judgment rendered at one term, can not beset aside at another term. 19 S. E. Rep. 588.
XXI. Judgment sustaining demurrer to declaration is res judicata. -26 W. Va. 583, syll. 8; 20 W. Va. 356-7.
XXII. Same declaration can not be filed after demurrer sustained. -108 U.S. 418; 95 Pa. St. 521; 21 Pick. 250; 21 Am. & Eng. Ency. Law 269, 270 and notes.
XXIV. Illegal evidence is ground for new trial. 2 Wash. 281; Hill'; Xew Tr. (2d Ed.) p. 407, § 1; 2 II. & M. 55.
Tomlinson & Wiley, J. E. Beller and C. E. Hogg for defendant in error cited Code, c. 125, s. 12; 24 W. Va. 206; 9 W. Va. 270; 12 S. E. Rep. 289; 10 W. Va. 250; 9 S. E. Rep. 684; 34 Am. Da. 155; 4 Watts & S. 141; 5 Scott X. R, 387; 4 McL. 208; 1 Pick. 156; 57 Me. 152; 24 Ark. 248; 28 111. 283; 11 Ind. 431; 4 T. B. Mon. 813; 2 Johns. Cas. 219; 3 11. & M. 502; 74 Me. 142; 58 X. H. 137; Id. 335; 57 X. II. 41; 49 Tex. 219; 64 Me. 570; Id. 550; 28 Vt. 673; 23 Ga. 590; 31 X. W. Rep. 60; 68 Vt. 186; 43 Am. & Eng. R'd. Cas. 309; 78 Ga. 525; 39 Kan. 690; 87 Fed. Rep. 894; 86 Ala. 324; 11 S. W. Rep. 526; 76 la. 67; 110 X. Y. 646; 17 Atl. Rep. 884; Code, e. 130, s. 46; 20 X. E. Rep. 727: 16 W. Va. 257; 25 W. Va. 266; 3 Gm. & W. X. T. 774; 11 Gratt. 572-3; Id. 411; Code, c. 12, s. 13; 9 W. Va. 616; 33 W. Va. 40; 6 la. 553; 27 Ala. 646; 7 Wis. 527; 28 W. Va. 653; 22 Eng. L. & Eq. Rep. 571; 3 W. Va. 335; 15 W. Va. 277.
Brannon, President:
This was an action of trespass on the::ase by William H. Clarke against the Ohio River Railroad Company in the Mason county Circuit Court to recover damages for the failure of the railroad company to build fences and put in cattle-guards and farm crossings on lands of the plaintiff condemned by the company for use of track, resulting in the recovery of a judgment by the plaintiff of six hundred dollars, to which the defendant took the writ of error which we now decide. The ease was once before in this Court. 34 W. Va. 200 (12 S. E. Rep. 505).
The first and third assignments of error are upon the action of the court overruling a demurrer to the amended declaration, which was tiled after the case was remanded by this Court to the Circuit Court to meet defects in the original declaration pointed out by this Court, The second assignment of error is upon the refusal of the court to sustain the defendant's motion to strike out the amended declaration. As I see nothing specified as error under the head of the demurrer that does not come up on the motion to strike out the amended declaration, they being in effect the same, I will consider the three together.
The original declaration was for failure to make fences, guards and crossings on four tracts of land. In the amended declaration the claim was as to five tracts, leaving out one included in the original, and thus the amended declaration included two tracts not counted upon in the original. The declaration specified divers failures to make fences, guards and crossings, claiming as to each one a specific sum for damages. There were two demurrers to the amended declaration. The first was made at the same time with the motion to strike from the record the entire amended declaration, and the court while overruling the demurrer struck out certain assignments of breaches of duty on the part of the company, which took from the declaration all claim for damages as to the two tracts inserted for the first time in the amended declaration, leaving certain breaches of duty or specifications of wrong yet standing in the declaration; and to the declaration thus purged the defendant entered a demurrer, which was overruled.
I suppose a motion to strike out an amended declaration should precede a demurrer to it, but, as the ground for striking out relied upon in this case is, that the amended declaration "contains new causes of action, I suppose this point immaterial. The bane of the amended declaration is said to consist in the fact, that it alleges omission by the company to make certain cattle guards, crossings and fences not relied upon as causes of recovery in the original declaration. Does the amendment therefore violate the rules relative to amended declarations by the introduction of new causes of action? What shall be called the cause of action? It is the ground on which the action may be sustained. Black. Law Diet. 182. "It is the breach of duty by the defendant complained of." This definition by Judge Holt is very concise and exact Harney v. Insurance Co, 37 W. Va. 272 (16 8. E. Rep. 580).
This general rule may be easily stated, but sometimes not easily applied. What shall be regarded, for the purpose of determining the propriety of amendment, as the cause of action in this case? To constitute cause or right of action two elements must concur a duty and a breach of it. There can be no actionable wrong unless there is a duty resting upon a person, and he breaks it. If there is no duty, though the act of the defendant may work harm or damage, there is no right of action; it is a case of damnum absque injuria. But if there is a duty owing, and it is broken, it is a...
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