Davis v. Ellis' Adm'r

• Decision Date: 25 February 1926
• Citation: 131 S.E. 815
• Parties: DAVIS, Director General, etc. v. ELLIS' ADM'R.
• Court: Virginia Supreme Court

131 S.E. 815

DAVIS, Director General, etc.

v.ELLIS' ADM'R.

Special Court of Appeals of Virginia.

Feb. 25, 1926.

McLemore and Holt, JJ., dissenting.

Error to Hustings Court, Part 2 of Richmond.

On rehearing. Judgment affirmed.

For former opinion, see 126 S. E. 658, 142 Va.——.

Munford, Hunton, Williams & Anderson and Edmund M. Preston, all of Richmond, for plaintiff in error.

Fulton & Wicker and M. P. Bonifant, all of Richmond, for defendant in error.

CHINN, J. The defendant in error (hereinafter designated as plaintiff) instituted her action against the Richmond, Fredericksburg & Potomac Railroad Company (hereinafter designated as defendant) to recover damages for the death of her husband, Warren G. Ellis, which she alleged was caused by the negligence of the defendant. After all the evidence on both sides had been produced at the trial of the case in the court below, the defendant tendered in writing a demurrer to the evidence, and the jury thereupon awarded plaintiff $10,000 damages, subject to the court's decision upon said demurrer. The trial court overruled the demurrer and en-tered judgment for the plaintiff, to which judgment a writ of error was awarded the defendant. The case was argued and submitted to this court on the 10th day of December 1924, and on February 26, 1925 (126 S. E. 658, 142 Va. ——), this court rendered an opinion reversing the judgment of the trial court on the demurrer, and entered judgment for the defendant. A rehearing having been granted, the case is now again before us for review.

In the petition for rehearing and on the second argument of the case, counsel for the plaintiff lay particular emphasis upon the point that defendant's demurrer to the evidence does not specifically allege as a ground of demurrer that defendant was not negligent, and for this reason the question of defendant's negligence cannot be considered by this court. This point does not seem to have been made in the original briefs filed in the case; the discussion by both sides having been centered for the most part upon the question of defendant's negligence, and I am informed by my associates that this was also the case in the original oral argument. But, however that may be, in view of the fact that the point is now urgently stressed, a complete reconsideration of the case would seem to be necessary.

In its petition for a writ of error, the defendant assigns three separate and distinct grounds for its contention that the trial court erred in overruling the demurrer to the evidence, as follows:

"(a) The defendant was not negligent.

"(b) That the negligence of plaintiff's intestate was the sole and proximate cause of the injury.

"(c) That plaintiff's intestate assumed the risk of the injury."

The demurrer to the evidence filed by defendant in the trial court is as follows:

"(1) That the plaintiff's intestate assumed the risk of receiving the injury complained of; and

"(2) That the negligence of the plaintiff's intestate was the sole proximate cause of the injury complained of."

The statute relating to the subject of demurrers to the evidence (section 6117 of the Code) has been so elaborately and definitely construed in several decisions of the Supreme Court of Appeals of this state that little or no doubt can now remain as to its purpose or the proper method of its application.

In Saunders v. Southern Railway Co., 84 S. E. 650, 117 Va. 396, where the demurrer was in general terms, Judge Harrison, speaking for the court, said:

"The language of the statute is too plain to admit of doubt, or to call for interpretation. * * * These statutory provisions are man datory and preclude the idea of jurisdiction to consider a demurrer to evidence, unless the grounds of such demurrer are specifically stated in writing. The statute is a wise one that should be upheld and enforced as it is written. Its salutary purpose would be defeated and the statute practically abrogated if it were permissible to modify it by ingrafting exceptions upon it." (Italics supplied.)

In McMenamin v. Southern Railway Co., 80 S. E. 596, 115 Va. 822, in which the question was whether the grounds specifically stated in defendant's demurrer were sufficient under the statute to embrace the cause of demurrer actually relied on, it was said:

"The object of that statute was at least twofold—first, to require the demurrant to give notice in writing of the grounds or causes of demurrer which he intended to rely on; and, second, to prevent him from assigning grounds of demurrer in the appellate court wholly different from those relied on in the trial court. * * *

"The demurrant knows, or ought to know, before demurring, in what respect the demurree has failed in his proof, and there is no more hardship in requiring him to specifically state it than there is in requiring a party demurring to a declaration to state specifically his grounds of demurrer. One is a demurrer to his adversary's pleading, and the other to his adversary's proof. In both cases the Legislature, it is clear, intended that the grounds of demurrer must be stated with reasonable certainty and that no other grounds than those so stated should be considered."

In Black v. Daughtry, 107 S. E. 694, 130 Va. 24, where the demurrer to the evidence stated two grounds, and there were four separate assignments of error, the question was whether the grounds stated in the demurrer were sufficiently specific to permit the court to consider any of the assignments of error before it. After a close analysis of the grounds stated in the demurrer and of the assignments of error, it was held that, under the circumstances of the case, neither ground of demurrer was sufficient, for the reason that any one of them might mean "any one of three things." Judge Sims concluded the opinion of the court in the following language:

"The holding of the cases mentioned may be summarized as follows: Where the ground or grounds of demurrer to evidence stated in the trial court are broad enough * * * to embrace more than one ground, and no particular ground, or grounds, is or are specifically stated as relied on, the statute on the subject is not complied with; and, whether any of the grounds so embraced in such statement * * * be good or bad, and regardless also of whether the demurree has been prejudiced by the default of the demurrant in the premises, no assignments of error based upon such ground or grounds of demurrer can be considered by the appellate court."

It can now, therefore, be safely said:

(1) That on appeal, when the case coming up is on a demurrer to the evidence, no ground of demurrer can be considered whichhas not been specifically stated in writing in the trial court.

(2) That if a ground of demurrer, as stated by the demurrant, is broad enough when considered in the light of the facts and circumstances of the case, to embrace more than one cause of demurrer, and no particular ground is stated as relied on, the statute is not complied with, and such ground of demurrer cannot be considered by the appellate court.

(3) That no assignment of error, based upon a ground of demurrer which has not been sufficiently stated as prescribed by the above propositions, can be considered by the appellate court, whether any of the grounds embraced in the statement in the trial court be good or bad, and regardless also of whether the demurree has been prejudiced or not.

Viewing this case in the light of the above rules deduced from the statute by our Supreme Court of Appeals, it is immediately evident that this court is without jurisdiction to consider defendant's assignment of error (a) "that defendant was not negligent, " and is therefore precluded from considering the question of whether or not the evidence shows or is insufficient to show negligence on the part of the defendant. The question of defendant's negligence being thus excluded, we are brought to the consideration of the two assignments of error which are based upon the grounds of demurrer stated and relied on by the defendant in the court below. Taking up the grounds of demurrer in the order in which they are assigned in the petition, the first to be considered is:

"That the negligence of the plaintiff's intestate was the sole and proximate cause of the injuries complained of."

In considering this ground of demurrer, which is a pleading, and contains all the evidence which is to be taken in connection with the ground assigned, this court will have to ascertain from the evidence whether or not (1) the deceased was negligent; and, if so (2), whether his own negligence was the sole proximate cause of the injuries he received, as alleged, without any other cause contributing to the occurrence of the injury, whether such other cause consisted of defendant's negligence or the act of a third person. And in making this investigation, as the defendant has not denied in its demurrer that it was guilty of negligence, that question, as hereinbefore stated, must be excluded from consideration by this court.

Bearing in mind the familiar rule applicable to demurrers to evidence—that the demurrant is considered as admitting the truth of all his adversary's evidence and all just inferences that can properly be drawn therefrom by the jury, and as waiving all his own evidence which conflicts with that of his adversary, or which has been im peached, and all inferences from his own evidence (although not necessarily in conflict with his adversary's) which do not necessarily result therefrom (Duncan v. Carson, 103 S. E. 665, 105 S. E. 62, 127 Va. 306)—the facts of this case, so far as pertinent to the ground of demurrer now being considered, may be stated as follows:

Plaintiff's intestate, W. G. Ellis, received the injuries which gave rise to this suit in Boulton yards of the defendant company, located in the city of Richmond, about 11:30 o'clock on the night of June 18, 1918. At the time of the accident deceased was employed as a brakeman in connection with one of the...