Hambrick v. Spalding

• Decision Date: 30 April 1935
• Docket Number: (No. 8102)
• Citation: 116 W.Va. 235
• Court: West Virginia Supreme Court
• Parties: Oscar Lee Hambrick, Admr. v. T. K. Spalding

116 W.Va. 235

Oscar Lee Hambrick, Admr.

v.T. K. Spalding

(No. 8102)

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1935.

Decided April 30, 1935.

1. Abatement and Revival

Where a second suit was instituted on the same cause of action as in another suit pending in a different court, an order of non-suit in the first on plaintiff's motion, promptly after a plea in abatement had been filed in the second, removed the bar to the plaintiff's right to proceed in the second.

2. Trial

"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Nichols v. Raleigh-Wyoming Coal Co., 112 W. Va. 85, 163 S. E. 767.

Error to Circuit Court, Kanawha County.

Action by Oscar Lee Hambrick, administrator of the estate of Lee Allen Hambrick, deceased, against T. K. Spalding. Judgment for defendant, and plaintiff brings error.

Judgment reversed; verdict set aside; new trial awarded.

Lilly & Lilly, for plaintiff in error.

Mohler, Peters & Snyder, Rummell, Blagg & Stone and H. Pummel Anderson, for defendant in error.

Maxwell, Judge:

In the court of common pleas of Kanawha County this action of damages for the alleged wrongful death of plaintiff's decedent, Lee Allen Hambrick, resulted in a directed verdict for the defendant, and a judgment of nil capiat. The circuit court affirmed the judgment. We awarded writ of error to the circuit court's action.

For preliminary determination is the question of jurisdiction of the court of common pleas, which question is raised by a plea in abatement filed at October Rules, 1933, and a special plea filed April 9, 1934, upon issue joined whereon the court found for the plaintiff in May, 1934. The defendant cross-assigns error thereon. The basis of his position in this particular is that at the time of the institution of the instant action there was pending in the circuit court of Kanawha County another action by the plaintiff against the defendant for the same purpose.

The proceeding at bar was instituted in the court of common pleas September 1, 1933. The plaintiff had sued the defendant in a similar action in the circuit court of said county in December, 1932. Therein, a verdict in favor of the plaintiff was set aside by the circuit court in April, 1933. The matter thus stood in the circuit court until November 4, 1933, when the plaintiff was granted a non-suit. In its order, the circuit court recited that the order of non-suit had been authorized and directed to be entered in July, 1933, but through inadvertence and mistake it had not then been entered, therefore, it was '' ordered that the same be entered now for then."

Whether, the circumstances considered, the order of nonsuit should relate back to July, 1933, under the nunc pro tunc provision (State v. Thornhill, 111 W. Va. 258, 161 S. E. 431) need not be considered, because, though the first action be deemed pending when the second was instituted, no consequence necessarily should have followed than that the plaintiff dismiss one or the other. Williams v. Brown, 70 W. Va. 472, 474, 74 S. E. 409; Stone v. Kaufman, 88 W. Va. 588, 590, 107 S. E. 295. He had a right to institute a second action.

Dismissal of the first suit removed the bar to the prosecution of the second. 1 Ency. P1. & Pr., p. 755; 1 Ruling Case Law, p. 11. He might have moved the circuit court to set aside the non-suit and re-instate the action (Code, 56-8-12, 13), or, prior to non-suit, he might have sought transfer to the court of common pleas (Acts 1915, chap. 109, sec. 16), but he did not attempt either course. The plan he adopted, however, being within his rights, we hold that the court of common pleas properly found for the plaintiff on the issue raised by the plea in abatement and the special plea.

Lee Allen Hambrick came to his death in an automobile collision soon after twelve o'clock in the morning of September 25, 1932, at the intersection of Main Street and Glenwood Avenue in the city of Charleston. Main Street is an arterial highway extending east and west intersected at right angles by Glenwood Avenue. There are stop signs for vehicular traffic entering the street from the avenue.

It is the theory of the plaintiff's case that the automobile which the deceased was driving was proceeding eastward on Main Street and that the defendant's automobile, operated by him, was...