Mcmenamin v. Southern Ry. Co
| Decision Date | 15 January 1914 |
| Citation | 115 Va. 822,80 S.E. 596 |
| Parties | McMENAMIN et al. v. SOUTHERN RY. CO. |
| Court | Virginia Supreme Court |
Act Feb. 19, 1912 (Acts 1912, c. 42), provides that the party tendering the demurrer to the evidence shall state in writing specifically the grounds of demurrer relied on, and the demurree shall not be forced to join in the demurrer until the specific grounds are so stated in writing, nor shall any grounds of demurrer not so specifically stated be considered. Held that, where suit was brought against a single defendant, a demurrer in that the evidence showed no actionable wrong to plaintiff by "this defendant, " and that the evidence fails to show that "this defendant" had committed any wrongful act in the premises, was insufficient to present the question that plaintiff had failed to prove that defendant owned the instrumentalities which caused the injury complained of.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 351, 353; Dec. Dig. § 154.*]
Defendant's failure to state specifically the grounds of its demurrer to the evidence, as required by Act Feb. 19, 1912 (Acts 1912, c. 42), is not waived by plaintiffs failure to object to the grounds of demurrer as not sufficiently specific and to refuse on that ground to join in the demurrer.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 351, 353; Dec. Dig. § 154.*]
Error to Circuit Court of City of Alexandria.
Action by Alice MeMenamin and Richard McMenamin, her husband, against the Southern Railway Company. Judgment for defendant, and plaintiffs bring error. Reversed, and judgment rendered in favor of plaintiffs.
J. K. M. Norton and Edmund Burke, both of Alexandria, for plaintiffs in error.
Francis L. Smith, of Alexandria, and Williams, Tunstall & Thom, of Norfolk, for defendant in error.
This is the second time this case has been to this court. On the former writ of error, the Southern Railway Company was the plaintiff in error; the judgment against it was reversed because of an erroneous instruction as to the right of the railway company to the defense of the statute of limitations; and the cause remanded for a new trial. 113 Va. 121, 73 S. E. 980.
The judgment complained of in the present writ of error was rendered upon a demurrer to the evidence.
One of the assignments of error is that "the grounds of demurrer to the evidence upon the facts and circumstances of the case were not sufficiently specific under the statute to reasonably disclose the sole ground of demurrer relied on, namely, that the plaintiffs had failed to prove ownership by the defendant of the instrumentalities which caused the injury complained of."
The grounds of demurrer assigned were as follows:
It is not contended that the second and fourth of these grounds were sufficient to authorize the consideration of the question of whether or not the evidence proved the ownership by the defendant of said instrumentalities. The matter, therefore, to be determined is whether or not the first or third ground of demurrer stated authorizes its consideration.
By an act approved February 19, 1912, amending an act approved March 14, 1900 (Acts 1906, c. 177), entitled "An act relating to demurrers to evidence" (Acts 1912, p. 75), it is provided that: "In all suits or motions hereafter, when the evidence is concluded before the court and jury, the party tendering the demurrer to evidence shall state in writing specifically the grounds of demurrer relied on, and the demurree shall not be forced to join in the said demurrer until the spe cific grounds upon which the demurrant relies are stated in writing; nor shall any grounds of demurrer not thus specifically stated be considered, except that the court may, in its discretion, allow the demurrant to withdraw the demurrer, may allow the joinder in demurrer to be withdrawn by the demurree, and new evidence admitted, or a nonsuit to be taken until the jury retire from the bar."
The object of that statute was at least twofold: First, to require the demurrant to give notice in writing of the grounds or causes of demurrer which he intended to rely on; and, second, to prevent him from assigning grounds of demurrer in the appellate court wholly different from those relied on in the trial court.
As was said by the president of the court in Bonos v. Ferries Co., 113 Va. 497, 75 S. E. 126, the degree of particularity with which the grounds of demurrer should be stated in order to meet the requirements of the statute, and thus accomplish the purposes for which it was enacted, "must depend to some extent upon the character of the case."
This is an action of trespass on the case, brought to recover damages for injuries resulting, as alleged, from the maintenance by the defendant company of a nuisance on its property. Two pleas were filed, the general issue and the statute of limitations. Upon the first trial (the record of which, upon the former writ of error, may be looked to by the court [Code, § 3463]) various defenses were relied on, but it was not claimed by the defendant that it was not the owner of the instrumentalities which inflicted the injury complained of. On the contrary, it introduced evidence, not only to prove that it was the owner, but also to show how and under what circumstances it had acquired the title. Upon the last trial, the one in which the judgment complained of was rendered, the counsel for the defendant company, in his opening statement to the jury, as certified by the trial court in bill of exceptions No. 1, "stated that the defendant and those from whom it derived title had been operating a railroad and yards at the place complained of since before the Civil War; that the three tracks of the Washington Southern Railroad, which were next to the property of the plaintiffs, had been used by great numbers of trains for many years; that the through tracks of the defendant, which were south of the Washington Southern tracks, had been used by great numbers of trains for many years; that the yards of the defendant had been much more used formerly; that, for nearly five years before the commencement of this suit, the passenger trains of both roads did not use the tracks back of the plaintiffs' property, but the same were run by the Union Station, outside of the city of Alexandria, and, for nearly five years before suit...
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Davis, D'R Gen. v. Ellis's Admx
...abrogated if it were permissible to modify it by engrafting exceptions upon it." (Italics supplied.) In McMenamin Southern Railway Company, 115 Va. 822, 80 S.E. 596, in which the question was whether the grounds specifically stated in defendant's demurrer were sufficient under the statute t......
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Davis v. Ellis' Adm'r
...abrogated if it were permissible to modify it by ingrafting exceptions upon it." (Italics supplied.) In McMenamin v. Southern Railway Co., 80 S. E. 596, 115 Va. 822, in which the question was whether the grounds specifically stated in defendant's demurrer were sufficient under the statute t......
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Hancock v. N. & W. Ry. Co.
...of the specific negligence of Martha Hancock, set out in the opinion. Black Daughtry, 130 Va. 24-31, 107 S.E. 694; McMenamin Southern Ry. Co., 115 Va. 822, 80 S.E. 596. I have not an opportunity to read the cases cited from other jurisdictions, but from the statements of the general rule qu......
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Hancock v. Norfolk & W. Ry. Co
...made of the specific negligence of Martha Hancock set out in the opinion. Black v. Daughtry, 130 Va. 24-31, 107 S. E. 694; McMenamin v. Southern Ry. Co., 115 Va. 822, SO S. E. 596. I have not an opportunity to read the cases cited from other jurisdictions, but from the statements of the gen......