Fleming v. Nay.

• Decision Date: 22 November 1938
• Docket Number: (No. 8758)
• Parties: Stella M. Fleming v. Harry Nay et al.
• Court: West Virginia Supreme Court

120 W.Va. 625

Stella M. Fleming

v.Harry Nay et al.

(No. 8758)

Supreme Court of Appeals of West Virginia.

Submitted September 28, 1938.

Decided November 22, 1938.

1. Action

The allegation in a declaration of trespass on the case of an agreement between the plaintiff and defendant which was not carried out does not constitute the joining of a right of action upon a breach of contract with the tort action.

2. Trial

Dealing with the misconduct of attorneys during the trial of a law action is a matter that rests in the sound discretion of the trial judge, and without a plain showing of an abuse of that discretion on his part or of his failure to exercise it, the allegedly wrongful conduct of attorneys does not constitute ground for reversal.

Error to Circuit Court, Roane County.

Action of trespass on the case by Stella M. Fleming against Harry Nay and another. To review a judgment in favor of the plaintiff, the named defendant brings error.

Affirmed.

Fox and Riley, Judges, dissenting.

Clarence W. Meadows, Attorney General, Forrest B. Poling, Assistant Attorney General, and Grover F. Hedges, for plaintiff in error.

Thos. P. Ryan and Wm. S. Ryan, for defendant in error.

Kenna, Judge:

This is an action of trespass on the case brought in the Circuit Court of Roane County by Stella M. Fleming against the County Court of Roane County and Harry Nay. Based upon a verdict for the plaintiff of seven hundred and fifty dollars judgment was rendered, and Harry Nay prosecutes this writ of error.

Plaintiff claims that she is entitled to damages because in broadening the Spencer-Ravenswood Turnpike the defendant wrongfully took a part of her land abutting on that road, including a valuable spring of clear water which was destroyed. The County Court on January 21, 1935, demurred to the declaration. This demurrer was later sustained, resulting in the dismissal of that defendant. There being no further demurrer and the action having been twice continued at the instance of the remaining defendant, the case, without the defendant having pleaded, was submitted to a jury which found a verdict for the plaintiff assessing her damages at five hundred and fifty dollars. This verdict was set aside and plaintiff was granted a new trial, because, as appears from the opinion of the trial judge made a part of the record, a great deal of evidence had been taken, without objection, of a contract between the defendant Nay and the plaintiff, and it was impossible, for that reason, to say whether the jury's verdict was based upon the violation of a contract or upon the tort aspect of the case. The trial court cited cases holding causes of action, one arising out of the tortious injury to property and the other arising out of breach of contract, could not be joined. There was no demurrer interposed to the declaration, neither was there objection to the introduction of the testimony. This Court declined a writ of error. On November 24, 1936, the plaintiff filed an amended and supplemental declaration, the order reciting that the defendant appeared and demurred to it. There was no written demurrer, nor does the order specify any grounds upon which the demurrer was based. The demurrer was set down for argument. The record does not show that the trial court ever passed upon it.

On February 1, 1937, the action, on motion of the defendant, was again continued.

An order recites that on June 3, 1937, the defendant filed his written demurrer to the amended declaration, in which the plaintiff joined, and which, upon being submitted, was overruled. The record discloses no written demurrer nor specified grounds upon which the demurrer was based. This order enters the defendant's plea of not guilty, shows the submission of the issue to a duly impaneled jury, and goes on to recite that after the jury had heard all of the evidence, plaintiff presented and asked leave to file her amended declaration, the allegations of which were intended to conform to the plaintiff's evidence. The declaration was filed over the objection of the defendant, the order providing, "that the defendant should have the benefit of all legal objections to said amended declaration to the same extent as if a written demurrer had been interposed by said defendant to the said declaration raising all legal objections that there might be to said declaration and that the court overrules said demurrer." Again, there was no written demurrer and the record does not disclose any specific ground upon which a demurrer could have been based.

Thereupon, the action was submitted to a jury which returned a verdict for the plaintiff of seven hundred and fifty dollars. The order shows that the defendant thereupon moved to set the verdict aside upon fourteen specified grounds, which were overruled, and judgment based upon the verdict was entered.

While we disapprove the provision of this order according to the defendant leave thereafter to receive the benefit of any and all "legal" objections "that there might be" to the declaration, notwithstanding this rather remarkable privilege extended to the defendant, even thereafter, the defendant specified no ground for demurrer.

From reading the three declarations that appear in this record along with the testimony of twenty-two witnesses for the plaintiff and twenty-three for the defendant which occupies nearly four hundred pages of the printed record, it would seem that the plaintiff was the owner of two boundaries of land near Reedy, Roane County, the road in question following the common line between the two tracts. On the north or upper side of the road there is what is referred to as a rock cliff. The plaintiff's land was fenced on each side of the road, the fences running parallel and approximately thirty feet apart with the exception of the upper fence where the spring was located. Here the upper fence "dipped" toward the south on both the east and west side, going down an abrupt declivity far enough to embrace within the plaintiff's land a spring which lay at the foot of the rock cliff.

The defendant and the men under him broadened the road in question by paralleling the plaintiff's fence on the north side of the road with the fence on the south. This plan involved eliminating the "dip" in the fence on plaintiff's northern boundary and moving it north from where it lay, partly on the south side of the spring, so that the entire fence on the north of the road would follow a line parallel with the fence on the south.

Before commencing this work the defendant had a talk with the plaintiff and procured her consent to the road broadening undertaking.

We think, based upon a painstaking examination of this record, that the foregoing statement is as far as the uncontradicted proof justifies our going. The rest of the testimony is in direct conflict.

There are but four assignments of error briefed and argued:

One. Actions ex contractu and ex delicto may not be joined.

Two. The action ex contractu is barred by the statute of frauds.

Three. The action ex delicto is not supported by the evidence.

Four. Conduct of counsel for plaintiff below constitutes reversible error.

There can be no contention as to the law in uniting a contract and tort action in the same proceeding, It requires no citation of authority to maintain the principle that it cannot be done. This however, is not to say that the fraudulent violation of a contract may not give rise to a cause of action ex delicto, nor that a contract may not be alleged in a tort action where the declaration is either not demurred to or, as here, no specific ground of demurrer is assigned. We are of the opinion that plaintiff's amended and supplemental declaration, disregarding superfluous allegation, contains sufficient allegations of...