Lawrence's Adm'r v. Hyde
| Decision Date | 22 February 1916 |
| Docket Number | 2901. |
| Citation | 88 S.E. 45,77 W.Va. 639 |
| Parties | LAWRENCE'S ADM'R v. HYDE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Averments in a declaration against a master for damages for wrongful death of his servant, of a higher degree of duty on the part of the master to provide for the safety of the servant than the law imposes, do not vitiate it.
For the purposes of a demurrer to such a declaration, the law itself raises the ordinary duties of the master to the servant, from allegation of the relation of the parties, and peculiar duties from allegation of the facts imposing them; wherefore in neither case is there necessity of express averment of the duty.
Averment of matter in a declaration in tort, beyond what is necessary to give a right of action, by reason of the use of words too broad in meaning, or redundant phrases or clauses, is treated as surplusage.
In a declaration for injury by negligence, it suffices to allege the facts from which the law imposes duty an act or omission constituting in law a breach of the duty and the resultant injury.
A witness interested adversely to the administrator, in the result of an action for damages for wrongful death, is incompetent to testify against the latter, in regard to a personal communication between himself and the person alleged to have been wrongfully killed.
An opinion of a witness, founded upon a matter the evidence does not tend to establish, is not admissible as evidence.
Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness is inadmissible.
An instruction based upon an actionable matter neither pleaded nor proved is erroneous.
An instruction so general and indefinite in its terms as to involve submission of matter of law, to the jury, for determination, is erroneous.
Error to Circuit Court, Preston County.
Action by Waitman W. Lawrence's administrator against W. H. Hyde. Judgment for plaintiff, and defendant brings error. Reversed, remanded, and new trial awarded.
P. J. Crogan, of Kingwood, for plaintiff in error.
F. E. Parrack, of Tunnelton, for defendant in error.
Lack of jurisdiction for invalidity of process is one of the assertions made by way of impeachment of this judgment for $1,979, recovered in an action for damages for alleged wrongful death of plaintiff's intestate. The cause of action arose, and the action was instituted, in Preston county; but the defendant, a nonresident of the state, not being found there, process, directed to the sheriff of Fayette county, was served on him in said last-named county. Deeming such procedure unauthorized and the summons void, he made a special appearance and moved the court to quash the return of service and excepted to the action of the court in overruling the motion.
The first summons, dated May 19, 1913, was returned "Not found in my bailiwick," July 7, 1913. The other was issued October 14, 1913. An order of attachment founded on an affidavit of nonresidence was issued May 19, 1913, and another, on new affidavits setting up the same ground, April 22, 1914. Although the defendant was a nonresident, he was not proceeded against by order of publication. Relying upon the sufficiency of the service in Fayette county, the plaintiff deemed an order of publication unnecessary, and it was, if the process was valid. After the motion to quash the return, the defendant, on March 30, 1914, still relying upon that motion and expressly declining to waive it, moved to quash the first attachment, the return of the sheriff, showing a levy on certain personal property under the attachment, and the affidavit. The record discloses no order expressly disposing of these motions. On April 18, 1914, the plaintiff filed two additional attachment affidavits and took out the second order of attachment. On the first Monday in June, 1914, he filed an amended declaration in the clerk's office, which was later filed by order of the court. On July 10, 1914, the defendant moved the court to quash the second attachment, the sheriff's return thereon, and the affidavits on which it was based, and excepted to the overruling thereof. Then, after having unsuccessfully demurred to the original and amended declaration, he entered his plea, and an issue was made thereon.
In terms, the motion was to quash the return, but the proposition argued here is that the summons is void for want of authority to direct and send it to the sheriff of Fayette county. Whether the motion is broad enough to test the validity of the writ need not be decided. Clause 4, § 1, c. 123, Code, ser. sec. 4734, and section 2, c. 124, Code, ser. sec. 4738, read together, authorize the direction of the writ to the sheriff of Fayette county. The defendant had estate in Preston and, being a nonresident, the former section gave right to sue him there, without reference to the place of origin of the cause of action. Then, the other gave right to send process against him to any county in the state. Quesenberry v. Building, etc., Ass'n, 44 W.Va. 512, 30 S.E. 73; Savage v. Building, etc., Ass'n, 45 W.Va. 275, 31 S.E. 991. For this interpretation, the two cases here cited are express authority.
As the motions pertaining to the first attachment, return, and affidavit have not been disposed of by the trial court, they present no question for decision, and if the second attachment is good they may be immaterial. No defect in the latter is perceived, nor is any specifically pointed out. The affidavits set forth the ground of attachment and fully describe the cause of action, and the sheriff's return details the property levied on and says it was taken as the property of the defendant. Evidently the motions were based mainly on the supposed want of jurisdiction, a ground of attack which utterly fails.
Failure of the declaration to allege the plaintiff's appointment as administrator was a defect for which the demurrer should have been sustained; but, if the record discloses no other error, the verdict need not be set aside, unless the plaintiff shall be unable to make and sustain that allegation. Reference to the first attachment affidavit, in an amendment to the declaration, making the affidavit an exhibit thereof, is relied upon as curing this defect. Though the affidavit says the plaintiff had been appointed, the amendment does not allege it, nor was the affidavit used as evidence. As to this vital question no issue was made. There was neither an allegation nor denial of appointment. Evidence of ability to prove it does not excuse omission of the allegation.
The demurrers were general, going to the original and amended declarations as entireties, not to each count of either, and the principal argument in support thereof is that a higher degree of duty is alleged than the law imposes. Allegations of duty, in several of the numerous counts, to use due care to provide a safe place of work and employ competent superintendents and coservants, go beyond the measure of duty as ascertained and declared in Whorley v. Raleigh Lumber Co., 70 W.Va. 122, 73 S.E. 263, and other cases. An averment of duty to furnish a safe place manifestly includes duty to exercise reasonable care to provide a reasonably safe place, just as an indictment for murder includes...
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