J.W. Bishop Co. v. Shelhorse

• Decision Date: 09 November 1905
• Docket Number: 592.
• Citation: 141 F. 643
• Parties: J. W. BISHOP CO. v. SHELHORSE, Sheriff.
• Court: U.S. Court of Appeals — Fourth Circuit

141 F. 643

J. W. BISHOP CO. v. SHELHORSE, Sheriff.

No. 592.

United States Court of Appeals, Fourth Circuit.

November 9, 1905

Green Withers & Green, for plaintiff in error.

Cabell & Custer and George C. Cabell, Jr., for defendant in error.

Before PRITCHARD, Circuit Judge, and PURNELL and WADDILL, District judges.

WADDILL District Judge.

This is an action of trespass on the case, brought by the defendant in error against the plaintiff in error to recover damages arising from the death of the intestate of the defendant in error, who lost his life while in the employ of the plaintiff in error, through the alleged negligence of the latter.

The plaintiff in error, a corporation chartered under the laws of Rhode Island, was engaged in building a dam across the Dan river, just opposite the city of Danville, in the county of Pittsylvania, for the Dan River Power & Manufacturing Co. and corporation engaged in manufacturing cotton upon a large scale; a part of said work was the construction of a 'concrete dam,' and work was begun on both the north and south sides of the river about the same time. As it progressed on the south side, and extended from the bank out into the river bed, it became necessary to construct a certain platform, tables, etc., to be used for storing sand rock, cement, and other material for use in concreting, which were constructed by the plaintiff in error under the direction of its superintendent and chief engineer. On the morning of the 18th of September, 1903, while the plaintiff's intestate was engaged at work upon the platform thus constructed, it gave way, and he was thrown into the river below and lost his life. The plaintiff below based his case upon the alleged negligence of the defendant in (1) having and maintaining an insufficient and unsafe structure for the purpose of the business in hand; (2) for using insufficient, defective, old, rotten- and inadequate timbers in the construction of said platform; and (3) in having an unfit and improper employee, one Monaghan, as foreman and boss in charge of the work in which said intestate was engaged at the time he lost his life. The plaintiff in error, having interposed its demurrer to the original and several amended declarations, pleaded not guilty, on which issue was joined, and a jury was impaneled on this issue, and rendered a verdict in favor of the defendant in error, upon which judgment was duly entered; and this writ of error was sued out by the plaintiff in error.

1. Three of the assignments of error relate to the action of the lower court in overruling the defendant's demurrer to the amended declaration, as well as to two additional amendments thereto, and also to the action of the court in suggesting to the counsel for the plaintiff the propriety of adding a new count to the declaration. Assuming the objections sought to be interposed to this declaration as amended can be made by demurrer in the federal court, said objections being merely for matters of duplicity in pleading, they seem to be clearly without foundation, either as respects the amended declaration or either of the subsequent amendments thereto. The demurrer was sustained to the original declaration, and the plaintiff filed what is treated in the record as the amended declaration, to which he subsequently filed first and second amendments. The amended declaration sets forth the plaintiff's cause of action in a single count, namely, the failure of the defendant to furnish the plaintiff's intestate with a reasonably safe and suitable platform or structure on which to perform the duties required of him; the failure properly to construct such platform and structure of safe and suitable material and to employ a reasonably competent foremen or boss to direct the work in hand. The first amendment sets firth this same cause of action in three different counts, and the second amendment by adding another count, which amplified the second count in the first amendment to the amended declaration, relative to the character of the materials used in and about the construction of said platform; and it was as to suggesting the addition of the last named count that the criticism was made specially of the action of the lower court. This declaration, whether treating the acts of negligence as set forth in the single count, or in the several counts as shown in the two last-named amendments, seems to us clearly sufficient to convey to the defendant full knowledge as to what the plaintiff's cause of action was; and we see no merit in its assignment of error thereto. The gravamen of the case was the negligence that caused the plaintiff's intestate to lose his life, and there is no good reason that we can conceive of why the averment as to the insecurity of the structure and defective material of which it was built, and the fact of the improper foreman giving directions for its use should not be set forth all in a single count, as was done in the amended declaration in this case; the plaintiff averring the knowledge of the defendant as to the existence of such conditions, and his ignorance respecting the same. Nor was it necessary to give the precise name of the alleged incompetent employee, when by the descriptive term of the declaration, namely, 'reasonably safe, careful, cautious and competent officer, foreman and manager,' the defendant was necessarily advised as to whom the complaint was directed. The first amendment to the amended declaration in three separate counts sets up in greater detail the plaintiff's cause of action, and it was upon this last-named amendment that the fourth count was added, at the suggestion of the judge; and the declaration as amended, with its several counts, on which the parties went to trial, was undoubtedly free from fault. The fourth count, added at the judge's suggestion, did not in any sense change the original cause of action, but amplified the same. Under the Virginia practice, the defendant clearly could not interpose the objections sought to be made here by demurrer, as it would be for mere duplicity in pleading at most, and could at common law have been availed of only by special demurrer, which has been abolished in Virginia by statute. Code Va. 1887, Sec. 3272 (Va. Code 1904, p. 1722) Norfolk & Western R.R. Co. v. Ampey, 93 Va. 108, 122, 25 S.E. 226, and cases there cited. This decision will be found of interest, as well upon the question of the sufficiency of this declaration, as upon the right to raise the question indicated by the demurrer. Judge Riely, speaking for the court (on page 121 of 93 Va., page 227 of 25 S.E.) says: 'The main objection to the declaration relates to the first count, and the foundation of the objection is that this count alleges three distinct grounds of negligence as the cause of the injury sustained by the plaintiff, either of which would of itself, independently of the others, constitute a sufficient ground for the action. In other words, the claim is that the count is bad for duplicity. The grounds so stated are, the negligence of the defendant in failing to exercise due care in selecting competent servants, in failing to provide a sufficient number of train hands, and in failing to supply and maintain suitable and safe machinery and instrumentalities for the conduct of the business of the defendant. They are conjunctively alleged as concurrent causes, which, co-operating together, produced the injury. It is very questionable whether this constitutes duplicity. It is stated by eminent text-writers on the subject of pleading, that no matters, however multifarious, will operate to make a pleading double that together, constitute but one connected proposition or entire point. Stephen on Pleading, 232-3, 263; 4 Minor's Inst. pt. 2, p. 927; and Va. F. & M. I. Co. v. Saunders, 86 Va. 969, 11 S.E. 794. But, even if this count was obnoxious to the charge of...