Findley v. Coal & Coke Ry. Co, (No. 2702.)

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation76 W.Va. 747,87 S.E. 198
PartiesFINDLEY. v. COAL & COKE RY. CO.
Docket Number(No. 2702.)
Decision Date12 October 1915

87 S.E. 198
76 W.Va.
747

FINDLEY.
v.
COAL & COKE RY.
CO.

(No. 2702.)

Supreme Court of Appeals of West Virginia.

Oct. 12, 1915.


Rehearing Denied Dec. 17, 1915.

(Syllabus by the Court.)
[87 S.E. 199]

Error to Circuit Court, Randolph County.

Action by Levi J. Findley, administrator, etc., against the Coal & Coke Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Price, Smith, Spilman & Clay, of Charleston, and E. A. Bowers, of Elkins, for plaintiff in error.

H. G. Kunip, of Elkins, for defendant in error.

POFFENBARGER, J. The disposition of a former writ of error in this case, revealing its character, is reported in 72 W. Va. 26S, 78 S. E. 396. On the new trial awarded by that decision, facts were disclosed which give it an aspect entirely different from that presented on the former writ of error. In view of the evidence adduced on that trial, by the defendant, for the purpose of proving a right of action under the federal Employers Liability Act, in exclusion of right of recovery under the state law, the plaintiff, with leave of the court and over the objection of the defendant, amended the first count of his declaration so as to claim right of recovery under the new state of facts. Its effort to keep the federal statute out of the case, except for the purpose of preventing recovery under the state statute, having failed, the defendant invoked the benefit of the limitation of the right of action prescribed by the former. The pleas setting it up were filed, a motion to direct a verdict for the defendant, based on the pleas and the evidence tending to sustain them, was overruled, and a verdict for the plaintiff in the sum of $5,300 was returned, on which a judgment was rendered.

Waiver of right to defeat recovery under the state statute, by showing the cause of action, if any, arose under the federal statute, is asserted on the ground of failure to interpose such defense in the former trial; no intimation of its existence having been given either in the court below or in this court on the writ of error. On this theory of waiver were founded objections to the introduction of evidence tending to show plaintiff's decedent was engaged, as an employe of the defendant, in interstate commerce, at the time of his death. While not clearly defined, the line of argument seems to be that the admission of this evidence was highly prejudicial error against the plaintiff, which the trial court could correct by the subsequent rulings in his favor of which the defendant complains. The opinion delivered on the former writ of error shows no adjudication of right of recovery in the plaintiff. Obviously, there was none in the court below, where the defendant prevailed. Here, its judgment was reversed and a new trial awarded the plaintiff, on account of erroneous rulings respecting instructions and the admission and rejection of evidence. It was held here that the trial court had erred in directing a verdict for the defendant. This ruling was the nearest approach to the merits of the ease. The only defense made in that trial was alleged insufficiency of the plaintiff's evidence. No evidence for the defendant was introduced. Its assertion of insufficiency of the plaintiff's evidence, by its motion to direct a verdict in its favor, having been sustained by the trial court, it stood upon that favorable ruling, as it had the right to do. While sustained in this position, it was not bound to say whether it had other defenses. Nor did the interposition of this one imply lack of others or an election of defenses. Its reliance upon other matters of defense, after this one had been overthrown here on the writ of error, was not at all inconsistent with its former conduct. The case was not here on a demurrer to the evidence, so as to enable the court to render a final judgment. Under our practice, the grant of a new trial, such as was accorded the plaintiff in this case, is not an adjudication of his right of recovery, nor does it preclude reliance upon defenses not interposed on the first trial. Neither party is held to the former status or condition of the case. The declaration may be amended in any proper way, new pleas filed, and new evidence adduced. Any point actually decided upon the appeal or writ of error is, of course, deemed settled. Butler v. Thompson, 52 W. Va. 311, 43 S. E. 174; Seabright v. Seabright, 33 W. Va. 152, 10 S. E. 265;

[87 S.E. 200]

Henry v. Davis, 13 W. Va. 230; McCoy v. McCoy, 29 W. Va. 794, 2 S. E. 809; Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009. Such also is the import of manifestly inapplicable authorities produced in support of the claim of waiver. After actual decision, it is too late to tender new defenses. Yazoo & Mississippi Valley Ry. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. 240, 45 L. Ed. 395; Union Mutual Life Insurance Co. v. Kirchoff, 169 U. S. 103, 18 Sup. Ct. 260, 42 L. Ed. 677; Western Electrical Supply Co. v. Abbeville Electric Light & Power Co., 197 U. S. 299, 25 Sup. Ct. 481, 49 L. Ed. 765. One of the authorities relied upon, Leora v. Railway Co., 156 Wis. 386, 146 N. W. 520, 8 N. C. C S. 108, seems to proceed upon the theory of a waiver by conduct. That case, however, is wholly inapplicable. In it, no attempt to set up a certain defense was made in the trial court. After it had gotten into the appellate court, an effort to assert that defense was made. Here, the defense in question was made in the court below, on the second trial, and it had not been foreclosed or barred by an adjudication in the first.

Properly regarding the federal Employers' Liability Act, when applicable, as exclusive of the state statute giving right of action for damages for death by wrongful act (St. Louis, etc., Railway Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; Second Employers' Liability Cases, 123 U. S. 1, 8 Sup. Ct. 1, 31 L. Ed. 51; Michigan Central Ry. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176), the defendant, to defeat recovery on the declaration as it was when the trial began, proved that the plaintiff's decedent was, at the time of his death, employed in the operation of a train which, although operated on an intrastate railroad, extending from the city of Elkins to the city of Charleston, was composed of a locomotive and tender and 33 cars, 9 of which cars had come from points without the state, under through contracts of carriage, for delivery in the state. Unable successfully to controvert this evidence and fearful of its effect, the plaintiff, before submission of the case to the jury, amended the first count of his declaration so as to make it conform thereto. Such right of amendment is admitted, provided the count, as amended, does not set forth a new cause of action. If it does, however, the right of amendment is denied. Hence the assignment of error, predicated upon the action of the court, in overruling the objection to the filing of the amended declaration raises vital inquiries: (1) Whether a new cause of action can be introduced by an amendment, after an appearance by the defendant and over objection thereto; (2) if not, whether a sufficient objection was made; and (3) whether the amendment sets forth a new cause of action.

After an appearance by the defend ant, the plaintiff cannot amend his declaration so as to introduce a new cause of action, over objection. Uniform adherence to this rule is attested by numerous decisions. Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981; Hanson v. Blake's Adm'r, 63 W. Va. 560, 60 S. E. 589; Clarke v. O. R. R. Co., 39...

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18 practice notes
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...C. & S. F. Ry. Co. v. Mathis, 194 S.W. 1135; Anset v. Columbia & P. S. R. Co., 89 Wash. 609, 154 P. 1100; Findley v. Coal & Coke Co., 76 W.Va. 747, 87 S.E. 198. It is hard to understand how an argument could be made in good faith that appellee himself was not at the time of the injury engag......
  • Brown v. Chicago, R. I. & P. Ry. Co., No. 25193.
    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ...v. Great Northern Railway Co., 126 Minn. 430, 148 N. W. 309; Smith v. Railroad Co., 134 Ga. 216, 67 S. E. 818; Findley v. Railway Co., 76 W. Va. 747, 87 S. E. 198; Milisaps v. Railway Co., 69 Miss. 423, 13 So. 696; and Weisser v. Railway Co., 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636. As is ......
  • Hayes v. Town Of Cedar Grove, No. 9736.
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...v. Ohio River R. R. Co., 39 W.Va. 732, 20 S.E. 696; Edgell v. Smith, 50 W.Va. 349, 40 S.E. 402; Find-ley v. Coal & Coke Railway Co., 76 W.Va. 747, 87 S.E. 198; and Morrison v. Judy, 123 W.Va. 200, 13 S.E.2d 751, 753. In the last-cited case the question was discussed in the following languag......
  • Smith v. United Fuel Gas Co, (No. 4398.)
    • United States
    • Supreme Court of West Virginia
    • April 25, 1922
    ...v. Hallanan, 87 W. Va. 396, 105 S. E. 506; Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150; Findley v. Coal & Coke Ry. Co., 76 W. Va. 747, 87 S. E. 198; Suttle v. Hope Natural Gas Co., 82 W. Va. 729, 97 S. E. 429. It is insisted, however, that, as the engine on which the plainti......
  • Request a trial to view additional results
18 cases
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...C. & S. F. Ry. Co. v. Mathis, 194 S.W. 1135; Anset v. Columbia & P. S. R. Co., 89 Wash. 609, 154 P. 1100; Findley v. Coal & Coke Co., 76 W.Va. 747, 87 S.E. 198. It is hard to understand how an argument could be made in good faith that appellee himself was not at the time of the injury engag......
  • Brown v. Chicago, R. I. & P. Ry. Co., No. 25193.
    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ...v. Great Northern Railway Co., 126 Minn. 430, 148 N. W. 309; Smith v. Railroad Co., 134 Ga. 216, 67 S. E. 818; Findley v. Railway Co., 76 W. Va. 747, 87 S. E. 198; Milisaps v. Railway Co., 69 Miss. 423, 13 So. 696; and Weisser v. Railway Co., 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636. As is ......
  • Hayes v. Town Of Cedar Grove, No. 9736.
    • United States
    • Supreme Court of West Virginia
    • March 12, 1946
    ...v. Ohio River R. R. Co., 39 W.Va. 732, 20 S.E. 696; Edgell v. Smith, 50 W.Va. 349, 40 S.E. 402; Find-ley v. Coal & Coke Railway Co., 76 W.Va. 747, 87 S.E. 198; and Morrison v. Judy, 123 W.Va. 200, 13 S.E.2d 751, 753. In the last-cited case the question was discussed in the following languag......
  • Smith v. United Fuel Gas Co, (No. 4398.)
    • United States
    • Supreme Court of West Virginia
    • April 25, 1922
    ...v. Hallanan, 87 W. Va. 396, 105 S. E. 506; Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150; Findley v. Coal & Coke Ry. Co., 76 W. Va. 747, 87 S. E. 198; Suttle v. Hope Natural Gas Co., 82 W. Va. 729, 97 S. E. 429. It is insisted, however, that, as the engine on which the plainti......
  • Request a trial to view additional results

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