Hanley v. West Va. Cent. & P. Ry. Co

• Decision Date: 17 April 1906
• Citation: 59 W. Va. 419,53 S.E. 625
• Court: West Virginia Supreme Court
• Parties: HANLEY. v. WEST VIRGINIA CENT. & P. RY. CO.

53 S.E. 625

59 W. Va. 419

HANLEY.

v.WEST VIRGINIA CENT. & P. RY. CO.

Supreme Court of Appeals of West Virginia.

April 17, 1906.

1. Death—Action fob Damages—Pleading— Admissions.

In an action under sections 5 and 6, c. 103, Code 1899, for damages for the death of a person caused by wrongful act, neglect or default, a plea to the merits of the action admits the representative character in which the plaintiff sues.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, §' 74; vol. 22, Cent. Dig. Executors and Administrators, §§ 1813, 1855.]

2. Pleading and Proof—Variance.

In such action, a variance between the declaration and the proof, relating alone to the instrument by which a bodily injury was inflicted, is immaterial and should be disregarded, when the instrument alleged and the instrument proved are of the same general nature.

3. Depositions—Seal of Notary.

A deposition, of a witness who resides out of this state, taken out of this state in conformity with section 33, c. 130, Code 1899, in an action at law pending before a circut court of this state, may be received, when properly certified under the hand of the notary public before whom it was taken, although not under his official seal, if otherwise proper.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositions, §§ 192-195.]

4. Same—Witness out of State.

A deposition of a witness taken out of this state, in an action at law pending in a circuit court of this state, may be read upon the trial of such action, if the deposition shows that the witness resided out of this state when it was taken and if otherwise proper, unless it appears that the witness is in this state when the deposition is offered.

5. Death—Negligence—Burden of Proof— Presumptions.

This action being founded upon negligence, the burden of proof is upon the plaintiff to show that the defendant has been negligent. Negligence will not be presumed alone from the explosion of a locomotive boiler, in use in lawful business upon the tracks of the defendant.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, § 78; vol. 37, Cent. Dig. Negligence, §§ 218, 225.]

6. Trial—Evidence—Motion to Exclude.

Upon the consideration of a motion to exclude all of the plaintiff's evidence introduced upon the trial of an action, he is entitled to the benefit of all proper evidence so introduced, and to all legitimate inferences of fact which may be drawn therefrom.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 355, 374, 402.]

7. Evidence—Expert Testimony.

An expert witness may give an opinion, In a proper case, based upon his own knowledge of facts disclosed in his testimony, or he may give an opinion upon the facts shown in evidence, and assumed in a hypothetical question submitted to him.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2368, 2369.]

8. AppEAL—Review—Reversal.

Where the circuit court on motion excluded all of the plaintiff's evidence, directed a verdict for defendant, and dismissed the action, and upon writ of error to the judgment it appears that material and proper evidence offered by plaintiff during the progress of the trial was improperly rejected to the plaintiff's prejudice, this court will reverse the judgment, set aside the verdict, award a new trial, and remand the case.

(Syllabus by the Court.)

Error to Circuit Court, Randolph County.

Action by James Hanley, administrator, against the West Virginia Central & Pittsburg Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

W. B. Maxwell and C. H. Scott, for plaintiff in error.

C. W. Dalley, for defendant in error.

COX, J. This action of trespass on the case was instituted by James Hanley, administrator of Mrs. Catherine N. Rabbett, against the West Virginia Central & Pittsburg Railway Company, in the circuit court of Randolph county. The plaintiff avers that he is entitled to recover $10,000 damages for the death of Mrs. Rabbett, caused by the explosion of the boiler of a railroad locomotive in use by the defendant upon its tracks in the city of Elkins; and that by the explosion the boiler was rent asunder, and a large piece of the metal thereof hurled upon the residence of Mrs. Rabbett, crashing through it and striking her, inflicting severe and fatal Injuries, from which she died. Plaintiff also avers that the explosion was produced by the defective and unsafe condition of the boiler, and by the mismanagement of the servants of the defendant. Upon trial before a jury, a motion to exclude all of the plaintiff's evidence and to direct a verdict for defendant was sustained, and the action dismissed. Upon petition of plaintiff, a writ of error was allowed to the judgment.

Defendant contends that plaintiff is barred of a recovery, regardless of his assignments of error, because he offered no evidence to show his due appointment and qualification as administrator. The authority for an action of this kind is found in sections 5 and 6, c. 103, Code 1899, which in part provide: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter: Every such action shall be brought by and in the name of the personal representative of such deceased person, " etc.

The plea entered in this action was not guilty. There was no plea of ne unques administrator. The question is: Does the plea to the merits admit the representative character in which the plaintiff sues? Some ofthe early cases and authorities hold that, where an administrator or executor sues upon a cause of action arising in his own time, and not in the time of the decedent, a plea to the merits does not admit the representative character in which the plaintiff sues; and that the plaintiff, notwithstanding such plea, must make proof of such character. 2 Lomax, Executors, 612, 613; 2 Greenleaf, Ev-§ 338. This early doctrine seems never to have had the assent of all the early cases. See Watson v. King, 4 Campb. 272, and Loyd v. Finlayson, 2 Esp. 564. It seems that necessity for proof of the representative character was never required after a plea to the merits, except where the cause of action arose in the time of the representative, and the representative might maintain the action in his own name without designating his representative character. Denver, etc., Ry. Co. v. Woodward, 4 Colo. 1. The tendency of the latest and best considered cases in America is to make no distinction between cases upon causes of action arising In the time of the decedent and cases upon causes of action arising in the time of the representative, and to hold in all cases that a plea to the merits admits the representative character in which the plaintiff sues. 18 Cyc. 994-996, notes 64, 65. Whether this be the correct view or not, our case of McDonald v. Cole, 46 W. Va. 186, 32 S. E. 1033, lays down the rule, without limitation or qualification, That "where one sues as executor or administrator, or in other representative character, there need be no proof of his appointment or authority unless a plea denies it. A plea to the merits admits the right of the plaintiff to sue as he does." It is true, that case was upon a cause of action arising in the time of the decedent, but the rule mentioned seems to have been announced as general. The opinion in that case says that the plea ne unques, etc., is a plea in abatement If that be true and applicable to all cases, then defendant's contention here must fail for want of such plea. It seems to us that the defendant's position cannot be maintained for the reason, also, that section 6, c. 103, Code 1899, provides that an action of this character may alone be brought by and In the name of the personal representative. He cannot maintain it in his own name, and no other person can maintain it. In such case, a plea to the merits, even under the early authorities referred to, admits the representative character in which the plaintiff sues. This exact question has been passed upon by many courts of last resort in this country; and universally, so far as we have examined, they hold that a plea to the merits in this kind of action admits the representative character in which the plaintiff sues. Denver, etc., Ry. Co. v. Woodward, supra; Union Ry. & T. Co. v. Shacklet, 119 111. 232, 10 N. E. 896; Chicago & Alton Railroad Co. v. Smith, 180 111. 453, 54 N. E. 325; Louisville & Nashville Ry. Co. v. Trammell, 93 Ala. 350, 9 South. 870; Atchison, T. & S. F. Ry. Co. v. McFarland (Kan. App.) 43 Pac. 788; Ewen v. Chicago & N. W. Ry. Co., 38 Wis. 614; Hodges v. Kimball et al., 91 Fed. 845, 34 C. C. A. 103. The last case mentioned arose under the Virginia statute, and was decided by the circuit court of appeals of the United States in 1899. The plea of not guilty in this action admits the character in which the plaintiff sues.

Defendant also contends that the plaintiff cannot recover because of a variance between the averments of the declaration and the proof. The exact point of variance claimed is this: The declaration avers that a large piece of metal of the exploded boiler struck Mrs. Rabbett, inflicting severe and fatal injuries, etc. Mrs. Boyd, the only witness on this point, says: "It was the timbers that struck Mrs. Rabbett. I can't remember very clearly. It was such a crash that I don't remember much about It, and at that time I was knocked down myself, and she was lying under the table." It will be observed that the alleged variance does not relate...