Hayes v. Town Of Cedar Grove, No. 9736.

CourtSupreme Court of West Virginia
Writing for the CourtFOX
Citation37 S.E.2d 450
PartiesHAYES. v. TOWN OF CEDAR GROVE.
Decision Date12 March 1946
Docket NumberNo. 9736.

37 S.E.2d 450

HAYES.
v.
TOWN OF CEDAR GROVE.

No. 9736.

Supreme Court of Appeals of West Virginia.

March 12, 1946.


[37 S.E.2d 451]
Syllabus by the Court.

1. Under Code, 56-4-24, a trial court may permit an amendment to a declaration or bill, after the appearance of the defendant thereto, if in its opinion substantial justice will be promoted thereby; but only to the extent of changing the form but not the cause of the action.

2. In an action against a municipal corporation, in which an employee seeks recovery of damages for personal injury, resulting from alleged negligence of the municipality in furnishing unsafe equipment, or in the operation thereof by fellow-servants, a proposed amendment to a declaration which alleges matter under which recovery might be had under Section 17, Article 10, Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933, should be denied as creating a new cause of action.

3. "A municipal corporation, organized under the laws of this State, is not liable for the negligence of its officers, agents, or servants, while they are engaged in acts directed to be performed by the governing authority of the municipality, in carrying out a purely governmental function." Hayes v. Town of Cedar Grove, 126 W.Va. 828, Pt. 7 Syl., 30 S.E.2d 726, 156 A.L.R. 702.

Error to Circuit Court of Kanawha County.

Action by Wilburn Hayes against the Town of Cedar Grove, etc., to recover for personal injuries suffered by plaintiff in falling from a truck while employed by defendant town. To review a judgment dismissing his action, plaintiff brings error.

Judgment affirmed.

Horace S. Meldahl, of Charleston, for plaintiff in error.

Bibby & Good, of Charleston, for defendant in error.

FOX, Judge.

In May, 1943, plaintiff, Wilburn Hayes, while employed by the defendant, Town of Cedar Grove, a municipal corporation, was injured by falling from a truck being used in removing trash and garbage from the streets and premises adjacent thereto in said town. He thereafter instituted this action in the Circuit Court of Kanawha County, seeking to recover damages for such injury from the Town of Cedar Grove, basing his action upon alleged negligence in respect to the character of the truck so used, and the manner in which it was operated. In his declaration, he averred matters which this Court held showed that the enterprise in which the town was engaged, and from which plaintiff's injury resulted, was in the exercise of a governmental function, and that the town was immune from liability by reason thereof. Hayes v. Town of Cedar Grove, 126 W. Va. 828, 30 S.E.2d 726, 156 A.L.R. 702. That case was decided upon the certification of the action of the trial court in sustaining a demurrer to the declaration.

Upon remand of the case to the Circuit Court, it appears from the record at bar, and from our own records, that on September 27, 1944, plaintiff tendered his amended declaration and that said court sustained defendant's demurrer to the declaration as amended. We refused to docket the certification of said ruling on October 30, 1944, and again on December 4, 1944. The first amended declaration was based upon the same theory of recovery as that contained in the original declaration.

On January 10, 1945, plaintiff was permitted to file a second amended and substituted declaration, which contains some additional allegations, but still relies upon the allegations of negligence contained in the original and first amended declarations. On January 19, 1945, plaintiff appeared and moved the court to amend his second amended and substituted declaration by inserting, at appropriate points therein, the following language: "and to keep its streets where same was used in a reasonably safe condition"; and the language: "where the street was in a bumpy?nd unsafe condition"; and the further language;

[37 S.E.2d 452]

"on said bumpy and unsafe street". The quoted amendments were permitted to be made, and were interlined in the second amended and substituted declaration at points such as would, in effect, make the said declaration include a charge that the streets of said town were in an unsafe condition, and that the street at the point of the accident was in a bumpy and unsafe condition, thus alleging a cause of action under the provisions of Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933, Michie's Code, 17-10-17. On the 24th day of February, 1945, the defendant, by its counsel, appeared and moved the court to strike from said amended and substituted declaration the language quoted above, on the ground that the insertion of said language created a new cause of action, which could not be set up by the amendment, which motion the court sustained. The defendant then filed its demurrer to the amended and substituted declaration, as deleted, on the ground that the same showed on its face that the alleged act of negligence of the defendant, which caused the injury of plaintiff, was committed by defendant in the exercise of a governmental function, and that defendant was immune from liability therefor. This is the same objection that was made to the original and first amended declarations, which objections, in the form of a demurrer, both the circuit court and this Court had sustained. The circuit court sustained said demurrer, and, the plaintiff not desiring further to amend, his action was dismissed, and this writ of error followed.

Our decision in Hayes v. Town of Cedar Grove, supra, settles the law of the case alleged in the original and the two amended declarations. Without the language quoted above, and stricken from the second amended and substituted declaration by the circuit court, there could be no recovery by the plaintiff. The declaration, as amended by the insertion of the language quoted above, might present a cause of action under said Chapter 40. The question is, therefore, whether a cause of action under Chapter 40 aforesaid can be set up by an amendment to...

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3 practice notes
  • Jones v. City of Mannington, No. 12256
    • United States
    • Supreme Court of West Virginia
    • June 23, 1964
    ...of its officers, agents, or employees in the exercise of governmental functions. Hayes v. Town of Cedar Grove, 128 W.Va. 590, pt. 3 syl., 37 S.E.2d 450; Hayes v. Town of Cedar Grove, 126 W.Va. 828, pt. 5 syl., 30 S.E.2d 726, 156 A.L.R. 702; Haney v. Town of Rainelle, 125 W.Va. 397, pt. 6 sy......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...S.E.2d 882 (1964); Van Gilder v. Morgantown, 136 W.Va. 831, 68 S.E.2d [158 W.Va. 743] 746 (1949); Hayes v. Cedar Grove, 128 W.Va. 590, 37 S.E.2d 450 (1946); Hayes v. Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726 (1944); Haney v. Town of Rainelle, 125 W.Va. 397, 25 S.E.2d 207 (1943); Morgan v. C......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...W.Va. 30, 45 S.E.2d 499; Burdick v. City of Huntington, 133 W.Va. 724, 57 S.E.2d 885; Hayes v. The Town of Cedar Grove, 128 W.Va. 590, 37 S.E.2d 450; Taylor v. City of Huntington, 126 W.Va. 732, 30 S.E.2d 14; Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547; Patton v. City of Gra......
3 cases
  • Jones v. City of Mannington, No. 12256
    • United States
    • Supreme Court of West Virginia
    • June 23, 1964
    ...of its officers, agents, or employees in the exercise of governmental functions. Hayes v. Town of Cedar Grove, 128 W.Va. 590, pt. 3 syl., 37 S.E.2d 450; Hayes v. Town of Cedar Grove, 126 W.Va. 828, pt. 5 syl., 30 S.E.2d 726, 156 A.L.R. 702; Haney v. Town of Rainelle, 125 W.Va. 397, pt. 6 sy......
  • Long v. City of Weirton, No. 13155
    • United States
    • Supreme Court of West Virginia
    • April 29, 1975
    ...S.E.2d 882 (1964); Van Gilder v. Morgantown, 136 W.Va. 831, 68 S.E.2d [158 W.Va. 743] 746 (1949); Hayes v. Cedar Grove, 128 W.Va. 590, 37 S.E.2d 450 (1946); Hayes v. Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726 (1944); Haney v. Town of Rainelle, 125 W.Va. 397, 25 S.E.2d 207 (1943); Morgan v. C......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...W.Va. 30, 45 S.E.2d 499; Burdick v. City of Huntington, 133 W.Va. 724, 57 S.E.2d 885; Hayes v. The Town of Cedar Grove, 128 W.Va. 590, 37 S.E.2d 450; Taylor v. City of Huntington, 126 W.Va. 732, 30 S.E.2d 14; Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547; Patton v. City of Gra......

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