Marion v. Chandler

Decision Date30 March 1954
Docket NumberNo. CC810,CC810
CourtWest Virginia Supreme Court
PartiesMARION, v. CHANDLER et al.

Syllabus by the Court.

1. Whether words used in connection with the name of a plaintiff or a defendant in a case are to be considered as descriptive of the person, or of the character in which he sues or is sued, is to be determined from all the allegations of the pleading filed by the plaintiff.

2. 'A trust estate is ordinarily not liable for torts committed by the trustee, when he is entirely free from the control of the beneficiary. And such a trustee is personally liable to third persons for his torts in failing to keep the trust property in repair, irrespective of his right to reimbursement.' Point 1, Syllabus, Massey v. Payne, 109 W.Va. 529 .

John J. Lane, Charleston, for plaintiff.

Steptoe & Johnson, Wilson Anderson, Charleston, for defendants.

HAYMOND, Judge.

The plaintiff James Bradford Marion instituted this action of trespass on the case in the Court of Common Pleas of Kanawha County, to recover damages for personal injuries caused by the alleged negligence of the defendants, Grant Chandler, Kiles Chandler and Harrison King, as trustees of The Bricklayers, Mason, Marble-Masons, Tile-Setters, and Terrazzo Workers Local Union No. 9 of West Virginia, of The Bricklayers, Masons, and Plasters International Union of America, and Preston Stamper.

To the amended declaration of the plaintiff the trustees filed a demurrer and a special plea and the plaintiff filed a demurrer to the plea. The court of common pleas overruled the demurrer to the amended declaration, sustained the demurrer to the special plea, and certified certain questions arising upon the demurrers to the Circuit Court of Kanawha County which affirmed the rulings of the court of common pleas and certified the questions to this Court. The defendant Preston Stamper has made no appearance in the case.

The amended declaration alleges in substance that the trustees of the local union are holders and owners of the legal title to a certain two story brick building located on Lee Street in Charleston, Kanawha County; that they or their predecessors in office caused the building to be constructed; that they leased the ground floor to the defendant Preston Stamper who operated a retail tavern business on that floor of the building when the grievances complained of occurred on April 12, 1953; that the trustees and the defendant Stamper then exercised joint control over the first floor of the building; that the plaintiff on April 12, 1953, as a customer and invitee of the defendant Preston Stamper, was legally and properly in and about the first floor of the building; that notwithstanding the respective duties of the defendants in the premises, the trustees or their predecessors in office negligently caused to be installed in the building gas transmission lines in such manner that they would have been accidentally broken, negligently failed to install securely fastened gas connections to stoves, heaters and other appliances, and, in violation of an ordinance of the City of Charleston, negligently failed to maintain the building in a manner which would prevent the accidental breaking of such gas transmission lines; that the defendant Preston Stamper negligently failed to take proper safeguards against the accidental breaking of such gas transmission lines and negligently failed to correct the faulty construction and installation of such gas transmission lines which they were under his control in violation of such ordinance; that on April 12, 1953, the plaintiff, as a customer and invitee of the defendant Preston Stamper in and about his business on the ground floor of the building, entered a toilet room used in connection with the business conducted by the defendant Preston Stamper; that without the knowledge of the plaintiff and without warning to him the gas transmission line from the meter to gas heaters or appliances, because of its negligent installation and because it was not securely fastened in place, had previously been accidentally broken and the toilet room had become filled with gas which then exploded and ignited; that the negligent installation of the gas transmission line and the negligent failure of the defendants to keep such line securely fastened proximately caused the gas to explode; that as the result of such explosion the plaintiff was wounded and severely burned in and about his person and his eyesight and hearing permanently impaired; and that the plaintiff suffered permanent injuries to his person and sustained damages in the amount of $25,000.

By their special plea the trustees allege that the process in this action was served upon them as individuals; that Local Union No. 9 is an unincorporated association of over two hundred fifty members and no action can be maintained against it without naming all of them as defendants; that the designation of the defendants as trustees is merely descriptive and the cause of action alleged by the plaintiff is against the defendants individually; that the defendants can not be sued in their representative capacity as trustees of an unincorporated association; that the cause of action of the plaintiff, if any he has, must be prosecuted against all the members of Local Union No. 9; and that the defendants, owners of real estate as trustees for Local Union No. 9, a labor union, can not be sued in their representative capacity for a tort as charged by the plaintiff in his amended declaration.

Under the foregoing plea the trustees base their defense to the action on these two principal grounds: (1) The action of the plaintiff, as set forth in the amended declaration, is against the defendants individually and not against them as trustees of Local Union No. 9 in their representative capacity; and (2) that if the action, under the allegations of the declaration, is against the defendants as trustees of an unincorporated association holding title to real estate it can not be maintained against them in their representative capacity to recover damages for an injury caused by the negligent construction and maintenance of a building on the property.

The two legal questions certified to this Court by the circuit court are: (1) Whether upon the pleadings the plaintiff has sued the defendants individually or as trustees in their representative capacity; and (2) whether an action for a tort may be maintained against the trustees of a labor union, in their representative capacity, in whose name title to real estate is held when the alleged tort occurred in and resulted from negligent construction and maintenance of a building on the property.

When a person is a party to a written instrument, such as a deed or a note, or process or a pleading in a case, and is mentioned or referred to merely by a particular title, name, or office, such person is considered to be a party only in his individual capacity and not in his representative capacity. Such designations or references are regarded as merely descriptive of the person, apply to such person only in his individual capacity, and serve no purpose other than that of description and identification of the person. Milan v. Settle, 127 W.Va 271, 20 S.E.2d 269; Hardesty, Receiver v. Fairmont Supply Company, 123 W.Va. 161, 14 S.E.2d 436; Hyman v. Swint, 94 W.Va. 627, 119 S.E. 866; Donahue v. Rafferty, 82 W.Va. 535, 96 S.E. 935; Hanson v. Blake, 63 W.Va. 560, 60 S.E. 589; Thompson & Lively v. Mann, 53 W.Va. 432, 44 S.E. 246; Exchange Bank of Virginia v. County of Lewis, 28 W.Va. 273; Rand and Minsker v. Hale, 3 W.Va. 495.

In the Milam case, in discussing this point, this Court said: 'The issuance of process against an individual defendant, and merely describing him as a public official, officer or agent of a corporation, or the agent of an individual, does not in any wise implead him in his official capacity, or in any representative capacity. Of course, public officials may be proceeded against in their official capacity, but they must be impleaded as such, in which case the rule of descriptio personae does not apply. The word 'as' is of importance in such cases, and the failure to use it in this instance indicates to us that the individual defendants were not intended to be sued in any representative capacity.'

Whether words used in connection with the name of a plaintiff or a defendant in a case, however, are to be considered as descriptive of the person, or of the character in which he sues or is sued, is to be determined from all the allegations of the pleading filed by the plaintiff. Massey v. Payne, 109 W.Va. 529, 155 S.E. 658; Thurmond v. Guyan Valley Coal Company, 85 W.Va. 501, 102 S.E. 221; Hanson v. Blake, 63 W.Va. 560, 60 S.E. 589; Rowland v. Rowland, 204 Ga. 603, 50 S.E.2d 343; 8 M.J., Executors and Administrators, Section 293. The allegations of the amended declaration are not merely descriptive of the defendants, who, as trustees, are alleged to be the owners of the building in which the plaintiff sustained his injuries. The negligent acts and omissions of the trustees, set forth in the amended declaration, are charged against them in their representative capacity as trustees of the local union; and the allegations of the amended declaration in its entirety are sufficient to show that this action is prosecuted by the plaintiff against the trustees in their representative capacity as such trustees.

Though there is a conflict in the decisions with respect to liability for a tort committed by a trustee, the general rule, supported by many cases, is that the estate is not liable but that the trustee is personally liable for a tort committed by such trustee. See Annotation I a, 123 A.L.R. 459; Annotation II, 44 A.L.R. 640; Annotation I a and b, 7 A.L.R. 408; and the cases in different jurisdictions cited in each annotation. In some jurisdictions, however, the estate is...

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