Frazier v. Kanawha & M. Ry. Co.
| Decision Date | 27 March 1895 |
| Citation | 21 S.E. 723,40 W.Va. 224 |
| Parties | FRAZIER v. KANAWHA & M. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1895
Syllabus by the Court.
Process emanating from the circuit court against a corporation may be served upon any person appointed pursuant to law to accept service for it; but such service must be in the county in which such person resides, and the return must show this, and state on whom and when the service was, otherwise the service shall not be valid.
Error to circuit court, Kanawha county.
Action by J. E. Frazier, administrator. against the Kanawha & Michigan Railway Company, for the death of decedent. Plaintiff had judgment, and defendant brings error. Reversed.
Couch Flournoy & Price, for plaintiff in error.
Simms Enslow & Chilton and W. E. Chilton, for defendant in error.
On the 4th day of July, 1891, William E. Fife was traveling as a passenger on the Kanawha & Michigan Railway, and was killed by a wreck occasioned by the falling of a bridge on the line of said railroad in Kanawha county. On the 16th day of July, 1891, C. T. Fife was appointed administrator of his estate, and on the 21st day of June, 1893, the clerk of the county court of Putnam county, in which county said W. E Fife resided at the time of his death, made an order in vacation, reciting the facts as to the appointment of C. T. Fife as administrator of said W. E. Fife, and his subsequent death, and upon the motion of J. L. Bowyer appointed J. E. Frazier, "sheriff of this county," administrator de bonis non of the personal estate of said W. E. Fife, deceased. On the 1st day of July, 1893, an action of trespass on the case was brought in the circuit court of Kanawha county in the name of J. E. Frazier, sheriff, and administrator de bonis non of the estate of W. E. Fife, deceased, against the Kanawha & Michigan Railway Company, claiming $10,000 damage on account of the death of his intestate. On the 12th day of December, 1893, when the case was called for trial, the defendant, by counsel, appeared for the purpose of moving to quash the plaintiff's writ and return thereon, which motion, having been made and considered by the court, was overruled, and the defendant excepted, and thereupon the defendant, by its attorneys, craved oyer of the plaintiff's letters testamentary, which were produced, and read to it, whereupon said defendant demurred to the plaintiff's declaration, and each count thereof, in which demurrer the plaintiff joined, which demurrer was overruled, and the defendant again excepted. The defendant then tendered six special pleas in writing, numbered from 1 to 6, inclusive, to the ming of which, and each of them, the plaintiff objected, which objections were overruled, and said pleas were filed, and the plaintiff excepted; and the defendant also pleaded not guilty, and issue was thereon joined. The plaintiff replied generally to special pleas Nos. 1 and 4, and issue was joined thereon. Issue was also joined on special pleas Nos. 2 and 3, and the plaintiff replied generally to special plea No. 5, and issue was joined thereon and on plea No. 6. Said special pleas are in the words and figures following: No. 1: "And for further plea in this behalf said defendant says that the plaintiff, J. E. Frazier, was not, at the time of the institution of this suit, nor ever hat been since said time, and is not now, the administrator de bonis non of W. E. Fife, deceased, and this it is ready to verify." No. 2: "And for further plea in this behalf the said defendant says that the plaintiff, J. E. Frazier, was not at the time of the institution of this suit, nor ever hath been since said time, and is not now, the administrator de bonis non of W. E. Fife, deceased, and of this it puts itself upon the country." No. 3: "And for further plea in this behalf the said defendant says that the plaintiff, J. E. Frazier, was not at the time of the institution of this suit the administrator de bonis non of W. E. Fife, deceased, and of this it puts itself upon the country." No. 4: "And for further plea in this behalf the said defendant says that the plaintiff, J. E. Frazier, was not at the time of the institution of this suit the administrator de bonis non of W. E. Fife, deceased, and this it is ready to verify." No. 5: "And for further plea in this behalf the defendant says that the plaintiff, J. E. Frazier, is not now the administrator de bonis non of W. E. Fife, deceased, and this the said defendant is ready to verify." No. 6: "And for further plea in this behalf the defendant says that the said J. E. Frazier is not now the administrator de bonis non of W. E. Fife, deceased, and of this it puts itself upon the country." On the 13th day of December, 1893, the case was submitted to a jury, which resulted in a verdict for the plaintiff, assessing the damages at $4,500. During the progress of the trial, and after all of the evidence was put before the jury, the court, at the instance of the plaintiff, gave to the jury the following instructions, marked 1, 2, 3, and 5. No. 1: No. 2: "The jury are instructed that the defendant railway company is held by the law to the utmost care, not only in the management of its train and cars, but also in the structure, repair, and care of the tract and bridges, and all other arrangements necessary to the safety of passengers." No. 3: "The jury are instructed that while they must assess the damages with reference to the pecuniary injuries sustained by the distributees in consequence of the death of W. E. Fife, they are not limited to the losses actually sustained at the precise period of his death, but may include all prospective losses, provided they are such as the jury believe from the evidence will actually and fairly and justly result to the distributees as the proximate damages arising from the wrongful death." No. 5: "The court instructs the jury that in the record exhibited in this case the plaintiff, J. E. Frazier, is the administrator de bonis non of W. E. Fife, deceased, and as such can maintain this action." The defendant moved the court in arrest of judgment, and to set aside the verdict of the jury rendered in the case, and award it a new trial, upon the ground that the said verdict was contrary to the law and the evidence, was excessive and exorbitant, and upon the further grounds that the court misinstructed the jury, and for other errors apparent upon the record, which motions were overruled, and the defendant excepted. The court rendered judgment upon said verdict, and the defendant applied for and obtained this writ of error.
The first error assigned and relied upon by the plaintiff in error is claimed to be in the action of the circuit court in overruling the defendant's motion to quash the return on the writ,--that said return does not show that George S Couch, the attorney upon whom it was served, resided in Kanawha county when it was served. The return on said summons is as follows: Did the circuit court err in overruling this motion? In determining this question we must look to the statute which prescribes the mode in which process shall be served upon a corporation. Section 6 of chapter 41 of the Code, among other things, provides that "the service of process when person or property is not to be taken into custody, or it is not otherwise specially provided, shall be subject to the regulations contained in the several sections from thirty-two to...
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