Hannum v. Hill

• Court: West Virginia Supreme Court
• Writing for the Court: MCWHORTER, J.
• Citation: Hannum v. Hill, 52 W. Va. 166, 43 S. E. 223 (W. Va. 1903)
• Decision Date: 14 January 1903
• Parties: HANNUM v. HILL et al.

43 S.E. 223

52 W.Va. 166

HANNUM v. HILL et al.

Supreme Court of Appeals of West Virginia.

January 14, 1903

Submitted January 27, 1902.

Syllabus by the Court.

1. It is a settled rule of this court that the granting or refusing a continuance of a cause is within the sound discretion of the trial court, and that a judgment or decree of such court will not be reversed for that reason unless the action of the court was clearly erroneous.

2. Error in giving or refusing to give certain instructions, or in admitting or refusing to admit certain evidence, affords no ground for reversing a judgment, when it is evident that the plaintiff in error could not have been injured thereby.

3. In an action for personal injuries received by reason of the negligence of a telephone company in permitting its wire to be stretched so low down over the public highway as to be caught by a horse's feet in passing, it is not competent to prove the condition of the wire at that point months subsequent to the time of the injury complained of.

Error to circuit court, Grant county; Robert W. Dailey, Judge.

Action by W. H. Hannum against W. B. Hill and others. Judgment for plaintiff, and defendants bring error. Reversed.

F. M Reynolds, L. J. Forman, and E. L. Judy, for plaintiffs in error.

J. N McMullen, Flournoy & Smith, and M. W. GAMBLE, for defendant in error.

MCWHORTER, J.

In an action for trespass on the case, W. H. Hannum recovered a judgment against the Petersburg & Franklin Telephone Company a partnership composed of various parties, for $4,500, for personal injuries to plaintiff. The defendants obtained a writ of error from said judgment.

The first error assigned is the overruling of the demurrer to plaintiff's declaration. It is claimed that the declaration is illogical, ungrammatical, and unintelligible and does not specify any act of negligence on the part of the defendants causing injury to the plaintiff, and that its allegations are too general, and not specific and certain enough to be understood, or to give notice to the defendants of the specific acts of negligence of defendants causing injury to the plaintiff. The declaration alleges that the defendants were the owners and operators of a certain telephone line, with all of its posts, boxes, insulators, and wires, extending and running from the town of Petersburg, in the county of Grant, to the town of Franklin, in the county of Pendleton; that said telephone line passed across and along the public road running between said points; that said road was a public highway, and had been for more than 25 years then last past, and had been continuously used and traveled as a public road and highway by the citizens of said counties, as well as by other persons, for all that time; "that the said defendants, being the owners and operators of said telephone line, for a long time had repaired, maintained, supported, and amended said posts, insulators, and wires belonging to said line, and of right ought to have maintained, repaired, supported, and amended, and that said defendants during all the time of their ownership and operation of said telephone line ought to have repaired, maintained, supported, and amended the said posts and insulators and wires of said telephone line as often as needed or occasion had been or required, that citizens of said county, and other persons going and traveling on said public road and highway, might not, through the insufficiency of said posts, insulators, wires, and the failure to repair, maintain, support, and amend the same, be injured and damaged, yet the said defendants, well knowing the premises aforesaid, on the 12th of January, 1900, in the nighttime, in the county of Grant, through the insufficiencies and defect of the said posts, insulators, and wires of and belonging to the said defendants, and through the failure of the said defendants to repair, maintain, support, and amend the said posts, insulators, and wires, which ought to have been provided, maintained, repaired, supported, and amended by the defendants, as this plaintiff was passing over and traveling on said public road and highway, as he had a right to do, at or near the high ground in said public highway, beyond the residence of Seymour Judy, about one mile southwest of the town of Petersburg, and while he was riding on horseback, at a dogtrotting gait, his horse came in contact with said wire belonging to said telephone line, which said wire was stretched across said highway, near the ground, through the carelessness and negligence of the defendants, and was not seen by the plaintiff, whereby plaintiff's horse became entangled in said wire and fell, causing the plaintiff to be thrown over said horse's head, violently to the ground, and thereby breaking the fifth and sixth ribs of the plaintiff on his left side, severely bruising his left shoulder, and causing permanent injury to his kidneys; as well as divers other injuries about his side, back, in the region of the kidneys, and other parts of his person, producing acute vomiting, and hemorrhages, causing bloody discharges with the urine, continuing until the present time, said discharges containing blood, mucus, pus, albumen, and tube-casts, as well as divers other and permanent injuries." In Snyder v. Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L.R.A. 499, 64 Am.St.Rep. 922, citing Clarke v. Railroad Co., 39 W.Va. 732, 20 S.E. 696, the rule is laid down "that a declaration in tort must have requisite definiteness to inform the defendant of the nature of the cause of action, and the particular act or omission constituting the tort." And in Poling v. Railroad Co., 38 W.Va. 645, 18 S.E. 782, 24 L.R.A. 215, it is held that a declaration for negligence "is good if it contains the substantial elements of a cause of action, the duty violated, the breach thereof properly averred, with such matters as are necessary to render the cause of action intelligible, so that judgment according to law and the very right of the case can be given." These statements are pronounced good law in the opinion in Snyder v. Electrical Co., cited, citing Hogg, Pl. & Forms, § 140. The declaration in the case at bar sufficiently alleges the duty of defendants to keep in good repair and condition the telephone line, and their duty to repair, maintain, support, and amend proper posts, insulators, and wires, and alleges that the "wire was stretched across said highway, near the ground, through carelessness and negligence of the defendants, and was not seen by the plaintiff." Yet it does not affirmatively allege that by reason of such failure to perform the duty thus alleged, and as a result thereof, and of the negligence of the defendants, the injuries complained of were inflicted. Plaintiff in error cites from the opinion in Snyder v. Electrical Co.: "You must aver the duty, and aver the existence of presence of negligence in its performance, and specify the act working damage, but need not detail all the evidential facts of negligence. You must tell the defendant, even under this general rule, that he negligently did a specific act doing harm. In other words, you may say that the defendant did or did not do so and so, without detail as to the mere negligence, but you must state the acts that are the basis of the liability," and it should appear from the allegations that by reason of such acts the injuries resulted. As the cause will have to be remanded for a new trial, it is thought the declaration should be made more specific in this particular.

The second assignment is that the court erred in refusing the defendants' motion for a continuance on the affidavit and amended affidavit of W. C. Smith, as set out in bill of exceptions No. 1. This motion was pressed on account of the absence of Dr. Fred. Moomau, who, it was claimed, was a material witness for the defendants. The affidavit of Smith was to the effect that the defendants had used due diligence to procure the attendance of the witness; that the testimony said witness was expected to give was expert testimony, based on the evidence of the plaintiff and his witnesses relating to the injuries claimed to be sustained by plaintiff, and to give evidence as a physician, expert and otherwise, tending to prove that plaintiff was not injured in the manner claimed. It is shown in the bill of exceptions: That Moomau lived about 30 miles from the court. The court was adjourned over until the next day to give defendants an opportunity to get said witness, and, if they requested it, a summons to be issued. That this statement was made on the 14th day of November, in ample time to send a summons on that day to Moomau's house. That the summons was not asked for, and the court having adjourned the trial until the next day, and said witness not being in attendance, the defendants renewed their motion for a continuance on the ground of his absence, and filed an amended affidavit to said Smith's affidavit, which amended affidavit stated that defendants and their attorneys had endeavored to procure the attendance of Dr. Moomau by sending a telephone message to him at Franklin, the place of his residence, about 30 miles distant from the court; that affiant believed that said message was received by the witness, but the witness was not in attendance, nor could anything be heard directly from him; that affiant was informed that Moomau was a very important witness, because he had a reputation of being an able physician, and would be able to give important testimony and material evidence for the defendants, and affiant desired said witness to be present when the plaintiff testified in the case, and to hear the plaintiff's evidence as to the way he was injured, and the extent and permanency thereof, and affiant expected to...