Massey v. Payne S.

• Decision Date: 21 October 1930
• Docket Number: (No. 6739)
• Parties: Hannah Massey, Admx., etc. v. W. D. Payne et als.
• Court: West Virginia Supreme Court

109 W.Va. 529

Hannah Massey, Admx., etc.

v.W. D. Payne et als.

(No. 6739)

Supreme Court of Appeals of West Virginia.

Submitted October 14, 1930.

Decided October 21, 1930.

1. 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.

2. An action may be treated as an individual or representative one as its true nature is disclosed upon an inspection of the whole record.

3. Where there are joint tortfeasors, it is optional with the injured party as to which of them he will sue.

4. Under Code, chapter 125, section 21, a plea in abatement should be disposed of before trial on a plea in bar.

5. Where a plaintiff' expressly refused to proceed against a defendant in personam, but sued him in a representative capacity, had the issue made up against him as such a, nd prosecuted the action against him to judgment in that capacity, the judgment will not be sustained against the defendant as a personal one, though the true nature of the action is personal.

Error to Circuit Court, Fayette County. Action by Hannah Massey, administratrix of French Massey, deceased, against W. D. Payne and others. Judgment for plaintiff, and defendants bring error.

Judgment reversed; new trial awarded.

Payne, Minor & Bouehelle, and Dillon, Mohan & Holt, for plaintiffs in error.

Love & Love, for defendant in error.

Hatcher, Judge:

The plaintiff's decedent, French Massey, was electrocuted on the night of January 19, 1929, and in this action she recovered a judgment for damages therefor in the circuit court, against W. D. Payne and Virginia Payne, as Trustees, under the will of J. M. Payne, deceased. Massey's death occurred on a tract of 853 acres which had been leased and operated for coal by Boomer Coal & Coke Company prior to January 1, 1929, but which had reverted to the landlords on that date. In recognition of that reversion, the landlords appointed an agent who was in possession on and after the date last mentioned. Massey had been an employee and tenant of the Coal Company for many years and his continued tenancy was recognized by the landlords after they resumed possession. The 853 acres tract was owned jointly by W. D. Payne and Virginia Payne, Trustees, etc., (3/8), Nettie P. Dickinson (2/8), and Margaret H. Osenton (3/8). When the propetry reverted, the Coal Company sold to the landlords an electric system which had been used In connection with its plant. The landlords continued to operate the system. A cross arm on a pole carrying a wire with a high current of electricity had become rotten. During a storm on the night before the accident, the cross arm broke, the wire sagged upon a wire fence and charged it with electricity. The fence was on a hill opposite to and some 200 feet from the house occupied by Massey. About ten o'clock P. M. on the evening of the fatality, he went on the hill, for the avowed purpose of discovering what was causing a dog up there to bark, came in contact with the wire; fence and was killed. The fence was some 15 or 20 feet from a path habitually used by the employees of the Coal Company for their own purposes. Proper inspection would seemingly have disclosed the defective condition of the cross arm.

"By the weight of authority a trust estate cannot be held liable for torts committed by the trustee. Ordinarily he can be held liable only in his individual capacity, and he is personally liable to third persons for his torts either of misfeasance or of nonfeasance in failing to keep that trust property in repair, irrespective of his right to reimbursement." Perry on Trusts and Trustees (7th ed.) sec. 437a. In an article appearing in Vol. 22, Col. L. R. 527, 541, Harlan F. Stone, while a professor of the Columbia University Law College, stated that the above "is an accepted doctrine wherever the question has arisen." An examination of the authorities confirms his statement. See Shepard v. Creamer, Tr., 160 Mass. 496; Bannigan v. Woodbury, 158 Mich. 206, 133 Am. St. Rep. 371, (annotation p. 373); Annotations 7 A. L. R, 408 and 44 A. L. R, 640, respectively; Sears Tr. Est., sec. 40; 24 C. J., p. 741, sec. 1826; 26 R. C. L., p. 1319.

The theory of plaintiff's counsel, however, throughout this suit has been that because the trustees were taking an active part in the management of the property in January, 1929, the trust estate could be held liable for the alleged negligence which caused the death of Massey. In support of the theory they cite the annotation in 44 A. L. R. at 681, a sentence from sec'178, page 1319, 26 R. C. L., and Wright v. B. Co., 151 N. C. 529. Both the annotation and the sentence are based largely on the North Carolina case. In that case, the trustees were acting with the sanction of the beneficiaries and to a large extent under their supervision and control. That situation did not exist in this case, and no reason whatsoever appears to take this case out of the general rule.

In pursuance of the erroneous theory the defendants are described in the declaration "as trustees under," etc. Such a description is the proper style to denote a representative capacity. Chitty on PI., sec. 205. Under earlier authorities of which Gilbert v. HardwicJc, 11 Ga. 599, 602, is a leading case, the description above would be held to be "of substance" and could not be regarded as immaterial. But under modern construction "title and pleadings may be considered together to ascertain the true nature of the action, and it will be treated as an individual or representative one as disclosed upon an inspection of the whole record," 2 Woerner The Am. Law of Administration (3rd ed.), sec. 303; Thurmond v. Coal Co., 85 W. Va. 501, 506. The allegations in the declaration do not make a case against defendants in their representative capacity; but the substance and effect of the allegations is to charge them personally. Consequently, the true nature of this action is an individual one. Therefore, the words "as trustees," etc., may be regarded as merely discriptio personae and surplusage. Shepard v. Cramer, Tr., supra; Bannigan v. Woodbury, supra; Belvin's Ex'rs. v. French, 84 Va. 81, 83; 24 C J., 825; Hanson v. Blake, Admr., 63 W. Va. 560.

The defendants filed a plea in abatement setting up that Nettie P. Dickinson a...