Fleming v. Hartrick
| Decision Date | 02 February 1926 |
| Docket Number | 5533. |
| Parties | FLEMING v. HARTRICK. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1926.
Syllabus by the Court.
The omission from the caption of a declaration of the name of the court in which it is filed, being mere matter of form, is rendered immaterial by section 9 of chapter 125 of the Code.
A declaration or other pleading is not rendered void because signed by attorneys in their firm name instead of in their individual names.
The general rule, requiring the driver of an automobile to maintain a speed sufficiently slow to have such control of it that he can stop it within the distance in which he can plainly see an obstruction of danger, does not apply to a case where a dangerous situation which he has no reason to expect suddenly appears in front of his car.
Negligence is never presumed; it must, when relied on as the basis of an action for damages, be established by a preponderance of the evidence, and unless so established the plaintiff is not entitled to recover, and the court should so instruct the jury.
Where as in this case, the act of negligence relied on to sustain plaintiff's action is solely the act of a third person the person sued is not liable.
Error to Circuit Court, Marion County.
Action by Walter W. Fleming, executor of his deceased wife, against George A. Hartrick. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and a new trial awarded.
Shaw & Shaw, of Fairmont, for plaintiff in error.
Nelly & Lively, of Fairmont, for defendant in error.
This is an action for the alleged wrongful and negligent killing by the defendant of plaintiff's wife, by running over her with his automobile while she was walking on or over the railway track of the Monongahela West Penn Public Service Company paralleling the public street or road known as the Fairmont and Weston turnpike, south of the city limits of the city of Fairmont, in Marion county.
On a plea of not guilty the jury returned a verdict for plaintiff for $3,500.00, on which the court pronounced the judgment complained of on the present writ of error.
The only errors assigned in the petition for the writ, or in the briefs of defendant's counsel, are: (1) The refusal of the trial court, on defendant's motion, to exclude plaintiff's evidence and direct a verdict for the defendant; (2) the denial of defendant's motion to enter judgment in his favor notwithstanding the verdict; (3) for other errors apparent on the face of the record.
In argument and in their brief, however, counsel for defendant urge that the trial court erred in denying his motion to strike out plaintiff's declaration as amounting only to a stray paper, and in fact no pleading on which judgment can be properly founded. Two criticisms of the pleading are interposed; one that it does not bear the title of circuit court of Marion county; the other that it is signed by "Neely & Lively, p. q."
The caption of the declaration is: "State of West Virginia County of Marion." Although all forms of declarations do show in what court the action is brought, we have found nothing in our statute requiring it. The summons must show in what court the defendant is required to answer the suit or action. If the declaration is filed in that court, it would seem to be a matter of form merely for the pleading also to state the court in which it is actually filed. Our statute section 9, chapter 125 of the Code, says:
"No action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case."
And in Indiana, where it would seem the statute requires the declaration to state the court in which it is filed, it is regarded as mere matter of form, and the want of it not fatal, nor reached by demurrer. Smith v. Flack, 95 Ind. 116, 121, and cases cited. In New York, also, the same rule is affirmed. Van Namee v. Peoble, 9 How. Prac. 198; Van Benthuysen v. Stevens, 14 How. Prac. 70. And to the same effect is Clark v. Comford, 12 So. 763, 45 La. Ann. 502, Livingston v. Coe, 4 Neb. 379, and Robinson v. Peru Plow Co., 31 P. 988, 1 Okl. 140.
Respecting the manner and form of signing the pleading, there seems to be no merit in the point of error. The forms given in the form books all admit of signatures of counsel with the suffix The defendant's own petition is signed "Shaw & Shaw," the firm name; but it is replied that the name of the defendant is first signed by Shaw & Shaw, the firm name--a distinction without a difference, we think. It is conceded that if the individual names of the partners were signed to the pleadings, it would be good, but that there is no warrant for signing the firm name, as firms are not as such licensed to practice law in the courts--a proposition supported by no citation of authority, doubtless because none could be found. There is authority for the counter proposition that attorneys may sign in their firm names. 31 Cyc. 526; Zimmerman v. Wead, 18 Ill. 304; Nave v. Lebanon Bank, 87 Ind. 204. So we negative both propositions advanced in support of the motion to strike out the declaration.
Plaintiff's case, by pleading and proof, is predicated on the theory that defendant, at and just before the time of the injury, was operating his car over the public road at a dangerous rate of speed; and (2) failed to have it under his control in time to avoid hitting and killing the deceased. Defendant's motion to exclude plaintiff's evidence before verdict, and the court's denial of his motion to direct a verdict in his favor non obstante veredicto, are both based on his claim that the evidence failed to sustain his theory of negligence, but supported his theory of unavoidable accident, and an insufficient declaration to sustain plaintiff's theory of right of recovery.
The only evidence relied on by plaintiff was the oral testimony of defendant himself and of Silverman, who was a passenger with him at the time of the injury, and the physical facts attending the injury and death of Mrs. Fleming. Defendant and Silverman were the only witnesses to the tragedy. The facts are few; and practically the only conflict in the evidence is the slight discrepancy between the two witnesses as to the rate of speed of defendant's car immediately before it ran upon and injured the decedent. On the inquest of the coroner, both witnesses substantially agreed that the car was traveling at a speed of from 15 to 20 miles per hour. Silverman said it was from 15 to 18. Defendant on the trial said it was from 18 to 20. On the trial and after he had been taken to the place of the accident by plaintiff and his attorney and had done some experimenting in driving his car over the same section of road where the accident occurred, and had conferred with them, Silverman came to the conclusion, and swore, that he estimated the speed of the car to have been about 25 miles per hour. But he says he did not watch the speedometer, and could not say exactly. Manifestly the effort of plaintiff and his counsel was to establish, by the testimony of Silverman and the physical facts attending the accident, that the rate was over 20 and as much as 25 miles per hour, this for the purpose of proving an unlawful rate of speed prescribed by the statute and laws of the road. Whether, if the rate was over 20 miles, the speed was unlawful, depends upon the question whether the section of the road where the accident occurred was an open country highway or a suburban street. The defendant contends for the former; the plaintiff for the latter. The maximum rate of speed for cars like defendant's, prescribed by section 95 of chapter 43 of the Code, as amended by Acts 1923, p. 32, § 95, is for open country roads 35 miles per hour, suburban streets 25 miles per hour, and on urban or city streets 15 miles per hour. The statute, section 75, chapter 43 of the Code, defines these classes of streets and roads; and an open country highway is thereby defined:
"A highway, or portion thereof, greater than one-fourth of a mile in length, along either side of which the buildings average more than three hundred feet apart."
A suburban road is defined as not less than one-fourth of a mile in length, on either side of which buildings average less than 300 feet apart, but more than 50 feet. It is conceded that the road in question was not an urban street as defined by the statute; and from the evidence on the subject, including that of S. B. Miller, engineer, called by plaintiff, we conclude that the road, both ways from the place of the accident for the requisite distance, brought it within the definition of an open country road as defined by the statute, and that if the defendant was not traveling to exceed 35 miles per hour he was within the law as far as his speed was limited by statute; and if it be true, as he swears, that he was not traveling to exceed 20 miles per hour, he was not exceeding the speed limit even if the road was a suburban street. So that negligence, if any, rendering him liable in this action cannot be supported by proof of the speed of his car.
But was defendant otherwise negligent in the operation of his car, so as to render him liable for the death of Mrs. Fleming? The place of the accident was on said public road, about 75 to 80 feet south of "Kennedy Stop" on the line of the Monongahela West Penn Public Service Company's electric railway, paralleling said road. The road on each side of this stop was practically straight for quite a distance, and down grade for most of the way to the city limits of the city of Fairmont. The time of the accident was March 25th, at about 7:45 p. m. It was dark and raining; and travelers in...
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