Lane Bros. & Co v. Bauserman

• Decision Date: 23 November 1904
• Citation: 103 Va. 146,48 S.E. 857
• Court: Virginia Supreme Court
• Parties: LANE BROS. & CO. v. BAUSERMAN.

48 S.E. 857

103 Va. 146

LANE BROS. & CO.

v.BAUSERMAN.

Supreme Court of Appeals of Virginia.

Nov. 23, 1904.

PROCESS— WAIVES OP DEFENSE—LIMITATION OF ACTIONS—RULINGS ON DEMURRER—INJURIES TO EMPLOYES—DANGEROUS PLACE FOR WORK —ADMISSION OF EVIDENCE—QUALIFICATIONS OF EXPERT WITNESS—DISCRETION OF COURT— OPINION EVIDENCE—HARMLESS ERROR.

1. A motion to quash the writ and summons on the ground that the action is barred by limitations is a waiver of all defects in the writ and return.

2. The question whether the action is barred by limitations cannot be raised by motion to quash.

3. Code, § 3271, as amended by Acts 1899— 1900, p. 111, c. 100 (2 Code 1904, p. 1721), provides that in civil cases the court, on motion of either party, or of its own motion, may require the grounds of demurrer relied on to be stated specifically, and no grounds shall be considered other than those so stated. Held, that a ruling on a demurrer, which is not copied in the record, will not be reviewed.

4. In an action for injuries resulting from an explosion while plaintiff was drilling a hole in a rock in ignorance of the fact that a blast had been placed in the hole and had failed to explode, evidence was admissible that defendants' foreman said, in the presence of plaintiff when set at work, that the hole was all right.

5. In an action for injuries received' while cleaning out a drill hole in a rock in which a blast had failed to explode, evidence tending to show that defendants' foreman had knowledge of the dangerous condition of the hole when he set plaintiff at work was admissible.

6. In such case, evidence that when plaintiff was set to work there was no notice posted showing that the hole was loaded was admissible, at least to rebut the idea that plaintiff was guilty of negligence in working at the hole in its dangerous condition.

7. The qualification of a witness to testify as an expert being largely in the discretion of the trial court, his admission of such testimonywill not be reversed unless it clearly appears that the witness was not qualified.

8. As a general rule, asking a leading question cannot be assigned as error, as the circumstances under which it may be asked are in the discretion of the trial court.

9. Error in asking the opinion of a witness on a matter on which expert evidence is inadmissible is harmless where the answer to such question is a matter of common knowledge.

10. Where the declaration in an action for personal injuries while plaintiff was working with defendants' "steel gang" at a stone quarry alleged that the injuries were caused by the "carelessness, negligence, incapacity, and want of skill on the part of defendants, their agents and employes who had charge of the quarry and works of defendants, " refusal to allow defendants' superintendent to answer the question, "Did you assign to the 'steel gang' any but experienced men?" was error.

11. In an action for injuries received while working in defendants' stone quarry, alleged to have resulted from the dangerous condition of the place, refusal to allow defendants' superintendent to state the condition of the quarry on the day of the accident was error.

Appeal from Circuit Court, Shenandoah County.

Action for personal injuries by John W. Bauserman against Lane Bros. & Co. Prom a judgment for plaintiff, defendants appeal. Reversed.

M. L. Walton and H. H. Downing, for appellants.

R. T. Barton and Tavenner & Bauserman, for appellee.

BUCHANAN, J. John W. Bauserman instituted his action of trespass on the case against John E. Lane and others, doing business as partners under the firm name of Lane Bros. & Co., to recover damages for personal injuries suffered by him while working in the defendants' rock quarry, and alleged to have been caused by their negligence.

Upon the calling of the cause the defendants appeared, and moved the court to quash the writ or summons. This motion was overruled, and the defendants excepted. This action of the court is assigned as error.

The bill of exceptions states that the grounds of the motion were, because the summons and return thereon were not in accordance with law, and that more than one year had elapsed between the time the plaintiff was injured and the institution of the action. One of the grounds of the motion to quash was in bar of the action, being, in effect, a plea of the statute of limitations, and was, therefore, a waiver of all defects in the process and return thereon.

It is well settled that, if process be illegally issued or executed, the validity of such process or return can be raised by a motion to quash, as well as by a plea in abatement. See Garrard v. Henry, 6 Rand. 112, 11G; Pulliam v. Aler, 15 Grat. 54, 62; Warren v. Saunders, 27 Grat. 259, 268; Raub v. Otterback, 89 Va. 645-649, 16 S. E. 933; N. & W. Ry. Co. v. Carter, 91 Va. 587, 22 S. E. 517; 1 Rob. Pr. (Old Ed.) 162; 4 Min. Inst. (1st Ed.) 532. But, if such motion be not made and disposed of before appearing to the action, or before taking or consenting to a continuance, the party is held to have waived all defects in the process and service thereof. Wynn v. Wyatt's Adm'x, 11 Leigh, 584, 590-595; Pulliam v. Aler, supra; Harvey v. Skip with, 16 Grat. 410, 414; Petty v. Frick, 86 Va. 501, 503, 10 S. E 886; New River Min. Co. v. Painter, 100 Va. 507, 42 S. E. 300.

Even if the action had been barred by the statute of limitations, that question could not be raised by a motion to quash the process. The motion to quash was, therefore, properly overruled.

The defendants demurred to the declaration and each count thereof. The demurrer was overruled, and this action of the court is assigned as error.

The grounds of the demurrer were set forth in writing, and filed, as required by counsel and the court; but that paper is not copied into the record, and it does not appear what the grounds of demurrer were.

Section 3271 of the Code, as amended by an act of assembly approved January 22, 1900 (Acts 1899-1900, p. 111, c. 100; 2 Code 1904, p. 1721), provides, among other things: "That all demurrers shall be in writing, except in criminal cases, and in civil cases the court on motion of any party thereto shall, or of its own motion may, require the grounds of demurrer relied on to be stated specifically in the demurrer, and no grounds shall be considered other than those so stated; but either party may amend his demurrer by stating additional grounds, or otherwise, at any time before the trial."

Since the trial court could not consider any ground of demurrer other than those stated specifically, and as they are not copied into the record, this court will treat the case as if there had been no demurrer; otherwise it might reverse the trial court upon a ground of demurrer not stated specifically before the trial, and which that court had j no right to consider under section 3271 of the Code, as amended. It may not be amiss to say that the amendment to section 3271 is an eminently wise one, and, if taken advantage of by the trial courts, will do away with the practice of assigning one ground of demurrer in the trial court and relying upon a wholly different ground in the appellate court—a practice which frequently results in the reversal of trial courts upon questions never presented to or considered by them.

Upon the trial of the cause, Bott, one of the plaintiff's witnesses, was asked, "Just state how the accident occurred, " and answered, "I says to Mr. Fisher, * * * 'Joe. has that hole gone off?' and Mr. Fisher says. 'Yes, sir, ' and walked up to the hole and pulled the wire out." The defendants objected to both question and answer. The court overruled the objection, and this action of the court is assigned as error.

Bott was an eyewitness to the accidentand there was no valid objection to asking him how it occurred. The objection made to the answer is that Fisher's assurances of safety, or his declarations, were not binding on the defendants. Fisher was the foreman in charge of the men known as the "steel gang." His duties were to work along with his men, and to look after them, and when the superintendent was not there (and he was not at the time of the accident) to direct them. In order to understand the objection made to Fisher's answer, it will be necessary to state briefly some of the facts of the case which the evidence tended to prove.

The defendants' rock quarry was located on a very steep hillside, where the stones lay in ledges of different depths, and were gotten out for dimension or building purposes exclusively. The manner of getting them out was by drilling holes with steam or hand drills, to put a small load or charge of powder in each hole, tamp clay upon the powder, connect a wire with an exploder attached pressed down to the powder, then attach the wires, positive and negative, so as to make a complete circuit, to an electric battery, by which the blasts were set off; the effect of which was to spring the stone and open fissures between the layers. Sometimes, when it was desired to remove more than one layer of stone, an additional charge of powder was placed In the hole corresponding to the layers, and prepared for explosion by the electric battery in the same manner as above described. Eight or ten days before the accident some twenty or more holes had been drilled, all about eight feet deep, and loaded. Three of these holes, near together, had been loaded with two charges in each. When the electricity was applied, the loads in the other holes and five of the six loads in the three holes exploded, leaving one unexploded in the middle hole. The three holes were again loaded, one charge in the middle hole and two in each of the others, and the electricity applied, but the bottom load in the middle bole again failed to explode. For eight or nine days water was...