Lucas v. Biller
| Decision Date | 22 April 1963 |
| Docket Number | No. 5551,5551 |
| Citation | 204 Va. 309,130 S.E.2d 582 |
| Court | Virginia Supreme Court |
| Parties | JOHN HENRY LUCAS v. EDITH BILLER. Record |
Thomas V. Monahan (J. Lynn Lucas; G. Kenneth Miller; Massie, Snarr & Monahan; May, Garrett, Miller, Newman & Compton, on brief), for the plaintiff in error.
Joshua L. Robinson, for the defendant in error.
JUDGE: I'ANSON
This action was instituted by the plaintiff, Edith Biller, against the defendant, John Henry Lucas, to recover damages for personal injuries alleged to have been sustained by reason of the defendant's negligent operation of an automobile in which she was riding as a passenger for hire. From a judgment for the plaintiff in the sum of $7,500, entered on a jury's verdict, we granted defendant a writ of error.
In his grounds of defense the defendant denied that plaintiff was a passenger for hire and alleged that she was a guest passenger. Later, plaintiff filed a bill of particulars and a request for admissions. The bill of particulars stated that the defendant was paid 50 cents per day on her behalf by Mr. Robert Rea for transporting her to and from work; that she was on the way home from work when the collision occurred; and that she was employed by the Hearty-Virginia Company. In response to the request for admissions the defendant admitted that the plaintiff was a passenger for hire.
Several days before the case was scheduled for trial on its merits defendant asked leave to file a demurrer and a plea to the jurisdiction, in which he alleged that at the time plaintiff sustained her injuries the parties were fellow-servants and that under the provisions of Code § 65-37 the trial court had no jurisdiction to determine the controversy because her exclusive rights and remedies were governed by the provisions of the Workmen's Compensation Act of Virginia (Title 65, Code of 1950).
The trial court rejected the demurrer and plea to the jurisdiction on the grounds that the plaintiff's pleadings did not show on their face that the court lacked jurisdiction of the subject matter and defendant had not shown cause for his failure to raise the issue by a plea in abatement within the time prescribed by Rule 3:6, Rules of Court. 1
The defendant contends that the trial court erred (1) in refusing to permit him to file his plea to the jurisdiction, to consider the jurisdictional defense at any stage of the trial, and to dismiss the action; (2) granting and refusing certain instructions; and (3) in not holding that the evidence was insufficient to support the verdict.
The evidence before the jury shows that the accident occurred in Page county, Virginia, in the late afternoon of October 27, 1959, while the defendant was driving his automobile on U.S. route 211 across Massanutten mountain. The defendant, plaintiff and three other persons who were riding in the defendant's automobile had been picking apples in Shenandoah county and were returning to their homes in Page county.
After defendant's automobile had crossed the top of the mountain and entered a straight stretch of the highway, the defendant and his passengers noticed two deer walking across the road from their right to their left about 25 feet ahead of the car. As the automobile passed the deer all of the occupants of the car turned their heads and watched them go down the bank on the left side of the highway. While the defendant was looking back over his left shoulder, the plaintiff observed a third deer in the path of the car and she exclaimed, 'Watch out.' As the defendant 'was bringing his head back around,' his car struck the deer. The automobile then went out of control, crossed the left lane of the highway and went down an embankment, and the plaintiff was injured.
Although the trial court refused to consider the jurisdictional issue, which was raised throughout the trial, it permitted the defendant to present evidence in support of his plea out of the presence of the jury and to make it a part of the record. The plaintiff also presented some evidence on the issue.
This evidence shows that the plaintiff and the defendant were employed by Hearty-Virginia Company, and on the day of the accident the defendant was transporting the plaintiff home from work under an agreement with their employer whereby he was paid 50 cents per day per passenger by Robert Rea, treasurer of the Hearty-Virginia Company, in addition to his daily wages. It was a general practice in the orchard industry for employers to furnish transportation to their employees to and from the orchards and the company found it necessary to provide transportation for the plaintiff.
All of the employees of Hearty-Virginia Company were covered by the insurance required under the Workmen's Compensation Act (Code, § 65-99), but the plaintiff did not file a claim under the Act.
Defendant says that the jurisdictional issue could be raised at any time, even for the first time on appeal, and that he was not required to raise it only by a plea in abatement within the time prescribed under Rule 3:6 of the Rules of Court.
On the other hand the plaintiff argues that since the lack of jurisdiction was not apparent on the face of her pleadings the question could only be raised by a plea in abatement as required by § 8-133, as amended, Code of 1950, 1957 Replacement Volume, and that such plea must be filed within the time prescribed under Rule 3:6.
Section 8-133, as amended, provides:
'Where the motion for judgment or bill shows on its face proper matter for the jurisdiction of the Court no exception for want of such jurisdiction shall be allowed unless it be taken by plea in abatement.' (Italics supplied.)
It is clear from the decisions of this Court that the jurisdiction referred to in this section applies to the territorial jurisdiction of the court and denotes venue only. The statute has no application where the court has no jurisdiction over the subject matter before it. In such cases a plea setting out lack of jurisdiction is a substantial defense and is in its nature a bar to the action. It is not a dilatory plea raising merely the question of venue and does not have to be raised only by a plea in abatement. Moore v. N. & W. Ry. Co., 124 Va. 628, 637, 98 S.E. 635, 637; NAACP v. Committee, 201 Va. 890, 900, 901, 114 S.E.2d 721, 729; Burks Pleading and Practice, 4th ed., § 203, pp. 333, 334; Lile's Equity Pleading and Practice, Meade, §§ 27, 29, pp. 17, 18, 19.
In Thacker v. Hubard, 122 Va. 379, at p. 386, 94 S.E. 929, at p. 930, 21 A.L.R. 414, this Court said: 'Objection for want of jurisdiction of the subject matter may be taken by demurrer, or motion, or in any way by which the subject may be brought to the attention of the court, and if not brought to the attention of the trial court, it may be taken notice of by the appellate Court, ex mero motu, for the first time.' (Italics supplied.) See also Burks Pleading and Practice, 4th ed., § 212, p. 349.
Even though a motion for judgment alleges matter proper for the potential jurisdiction of the court, and the court has acquired actual jurisdiction of all the necessary parties, if on the hearing it appears from the whole case that the controversy belongs exclusively in another court, the court hearing the case ought not to take jurisdiction and establish legal rights over which it lacks jurisdiction of the subject matter. Iron City Bank v. Isaacsen, 158 Va. 609, 626, 164 S.E. 520, 525; Jones v. Bradshaw, 16 Gratt. (57 Va.) 355, 361 (1863); 14 Am. Jur., Courts, § 191, p. 385.
Since the defendant was not required to raise the issue of the trial court's lack of jurisdiction of the subject matter only by a plea in abatement and within the time prescribed by Rule 3:6, the trial court erred in not allowing the defendant to file his plea to the jurisdiction and in refusing to consider the jurisdictional issue. This issue should have been disposed of before proceeding to hear the case on its merits. But since the court did not do this, it should have considered the jurisdiction issue when raised by motions throughout the trial, especially after it heard evidence on the issue out of the presence of the jury and made it a part of the record.
Thus we will determine from the record before us whether the trial court had jurisdiction of the subject matter of plaintiff's claim.
Jurisdiction of the subject matter cannot be obtained by consent of the parties, waiver or estoppel. The subjects over which the various courts of this...
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