Clarke v. Ohio River R. Co

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON
Citation20 S.E. 696,39 W.Va. 732
PartiesCLARKE . v. OHIO RIVER R. CO.
Decision Date18 December 1894

20 S.E. 696
39 W.Va.
732

CLARKE .
v.
OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1894.


Railroad Company — Construction of Farm Crossing—Amendment of Complaint—When Proper—Interlocutory Order —Vacation at Subsequent Term—Bill of Particulars.

1. An amended declaration is no departure from the original, unless 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 cannot 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.

2. An amended declaration in an action by a landowner against a railroad company for failure to build fences, farm crossings, and cattle guards may charge failures to build them at other points than those specified in original declaration without being in violation of the above rule.

3. A court can set aside at one term an order made in the progress of the cause at a former term, which is interlocutory, but not a final judgment. An order which merely sustains a demurrer to a declaration, or strikes out a count or item of claim, but followed by no judgment as to it, is interlocutory in nature, and the count or item of claim may be reinstated in the declaration at a subsequent term.

4. Section 46, c. 130, Code 1891, applies as well to actions for torts as actions on contracts. A statement of the particulars cannot be required where the declaration gives the grounds of action and particulars of claim with sufficient definiteness 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 cannot be thus general consistently with law, demurrer is the remedy, not such statement of particulars.

5. Such statement of particulars should contain the grounds of action, not evidence.

6. A plea filed to the first declaration, and not withdrawn, will apply to an amended declaration.

7. When a railroad company has put in, when building its railroad, a sufficient number of suitable farm crossings and cattle guards, it cannot be required afterwards to build others at other places.

8. When a railroad company has made gates in fencing inclosing its track to afford access to a farm crossing, the mere presence of such crossing does not require cattle guards

[20 S.E. 697]

at the crossing, there being no fences there dividing fields.

9. 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 eversal by an appellate court. Clearly he is entitled to give evidence to rebut that of the defendant.

(Syllabus by the Court.)

Error to circuit court, Mason county.

Action of trespass by William H. Clarke against the Ohio River Railroad Company. Judgment for plaintiff. On an order overruling a motion to strike out the amended declaration of plaintiff, defendant brings error. Reversed.

Leonard & Archer, for plaintiff in error.

C. E. Hogg, John E. Beller, and Tomlinson & Wiley, for defendant in error.

BRANNON, P. This was an action of trespass on the case 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 $600, to which the defendant took the writ of error which we now decide. The case was once before in this court. 34 W. Va. 200, 12 S. E. 505.

The first and third assignments of error are upon the action of the court overruling a demurrer to the amended declaration, which was filed 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 Dict. 182. "It is the breach of duty by the defendant complained of." This definition by Judge Holt is very concise and exact. Harvey v. Insurance Co., 37 W. Va. 272, 16 S. E. 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 case of damnum cum injuria. Now, take a case. There is a farm, through which a railroad right of way is condemned. The company's legal duty is to put in two cattle guards. That is the whole duty to the owner as to this tract. If it puts neither, that duty is broken; so if it puts in only one. This might seem to imply that the failure to put in each cattle guard was in itself alone a cause of action, but I think not. The owner of this farm sues the company for breach of this duty. The duty includes two cattle guards. He specifies in his declaration, however, only the failure to build one, but he concludes later that the duty covers two. Can he not amend his declaration, and specify a second breach in the failure to make a cattle guard at another place? He does not introduce a new and different substantive cause of action, as he does not impute a new and different duty, but, still relying upon the same duty as giving birth to his right, he but calls in another breach of that duty. We must not forget to regard together both this duty and its breach or breaches in determining what is to be deemed the cause of action in deciding whether an amended declaration departs from the original, as it

[20 S.E. 698]

will facilitate the solution. I think that where there is one duty, and it is of such nature as to allow several breaches, an amended declaration, based on that duty, may assign further breaches without infringing on the rule forbidding the introduction by amendment of a different substantive cause of action. The company owes an obligation as to each of the two cattle guards, but only because the one is included by the two, —the minor within the major duty. The sheriff or constable's bond imposes a general duty. He owes a separate duty as to each of two executions or claims in his hands. If sued for breach of duty as to one, could an amendment not assign another breach as to the other execution?

In this case, for the purpose in question, we consider the failure to comply with its duty by the company in making fences, guards, and crossings on the land as the cause of action, and not the failure as to each crossing separately and distinctly. I think he is bound to amend, or else ever lose damages for failures not included in the declaration; for a person cannot split one cause of action into several suits. When there are several breaches of one contract or duty, he must in one action sue for all. The landowner cannot sue now for failure to build one crossing here, and recover, and then bring another suit for the failure to build another there, on the same land. 7 Rob. Pr. p. 175, § 7. This is a good reason for allowing such amendment. It is not necessary to say whether we may separate fencing, guards, and crossings, making each a separate ground of action, so far as to say that where the original declaration is based on failure to fence an amended declaration may or may not proceed for failure to make crossings or cattle guards. Amendments are allowed with liberality, because we...

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66 practice notes
  • Edmiston v. Wilson, No. 12052
    • United States
    • Supreme Court of West Virginia
    • June 27, 1961
    ...Traction Company, 91 W.Va. 528, 114 S.E. 131; State v. Williams, 49 W.Va. 220, 38 S.E. 495; Clarke v. Ohio River Railroad Company, 39 W.Va. 732, 20 S.E. 696; Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686; Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890; Bowyer v. Knapp and Martin, 15 W.Va. 277. Whe......
  • Birmingham Ry., Light & Power Co. v. Littleton, 6 Div. 534
    • United States
    • Supreme Court of Alabama
    • May 10, 1917
    ...A cause of action is made up of a duty and a breach of it. A., T. & S.F.R. Co. v. Rice, 36 Kan. 593, 600, 14 P. 229; Clarke v. Ohio Co., 39 W.Va. 732, 20 S.E. 696. The former must be shown by the facts alleged in the declaration. Will's Gould on Pl. 2, 3. This is the rule, though the duty r......
  • Allegheny Development Corp., Inc. v. Barati, No. 14055
    • United States
    • Supreme Court of West Virginia
    • December 19, 1980
    ...v. Weisengoff, 89 W.Va. 279, 109 S.E. 707 (1921); State v. Williams, 49 W.Va. 220, 38 S.E. 495 (1901); Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. 696 (1894); Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686 (1894); Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890 (1889); Bowyer v. Knapp a......
  • Janssen v. Carolina Lumber Co., No. 10484
    • United States
    • Supreme Court of West Virginia
    • November 18, 1952
    ...Mason, 43 W.Va. 196, 27 S.E. 293; Perdue v. Caswell Creek Coal & Coke Co., 40 W.Va. 372, 21 S.E. 870; Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. After the case had been submitted to the jury and after the jury had deliberated for approximately four hours, and after having twic......
  • Request a trial to view additional results
66 cases
  • Edmiston v. Wilson, No. 12052
    • United States
    • Supreme Court of West Virginia
    • June 27, 1961
    ...Traction Company, 91 W.Va. 528, 114 S.E. 131; State v. Williams, 49 W.Va. 220, 38 S.E. 495; Clarke v. Ohio River Railroad Company, 39 W.Va. 732, 20 S.E. 696; Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686; Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890; Bowyer v. Knapp and Martin, 15 W.Va. 277. Whe......
  • Birmingham Ry., Light & Power Co. v. Littleton, 6 Div. 534
    • United States
    • Supreme Court of Alabama
    • May 10, 1917
    ...A cause of action is made up of a duty and a breach of it. A., T. & S.F.R. Co. v. Rice, 36 Kan. 593, 600, 14 P. 229; Clarke v. Ohio Co., 39 W.Va. 732, 20 S.E. 696. The former must be shown by the facts alleged in the declaration. Will's Gould on Pl. 2, 3. This is the rule, though the duty r......
  • Allegheny Development Corp., Inc. v. Barati, No. 14055
    • United States
    • Supreme Court of West Virginia
    • December 19, 1980
    ...v. Weisengoff, 89 W.Va. 279, 109 S.E. 707 (1921); State v. Williams, 49 W.Va. 220, 38 S.E. 495 (1901); Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. 696 (1894); Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686 (1894); Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890 (1889); Bowyer v. Knapp a......
  • Janssen v. Carolina Lumber Co., No. 10484
    • United States
    • Supreme Court of West Virginia
    • November 18, 1952
    ...Mason, 43 W.Va. 196, 27 S.E. 293; Perdue v. Caswell Creek Coal & Coke Co., 40 W.Va. 372, 21 S.E. 870; Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. After the case had been submitted to the jury and after the jury had deliberated for approximately four hours, and after having twic......
  • Request a trial to view additional results

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