Moss v. Hyer

• Decision Date: 06 February 1934
• Docket Number: No. 495.,495.
• Citation: 172 S.E. 795
• Court: West Virginia Supreme Court
• Parties: MOSS. v. HYER.

172 S.E. 795

MOSS.

v.HYER.

No. 495.

Supreme Court of Appeals of West Virginia.

Feb. 6, 1934.

Syllabus by the Court.

Save only as his right may be affected by the statute of limitations, a person who had been undergoing imprisonment for a felony, upon restoration of his capacity to sue, may prosecute an action for any personal wrong done to him after the commencement of the period of disability.

Certified from Circuit Court, Clay County.

Action by Left Moss against Halcie P. Hyer. A demurrer to the defendant's special plea was overruled, and the ruling certified for review.

Ruling reversed, and cause remanded.

J. B. Springston and J. M. Life, both of Charleston, for plaintiff.

E. G. Pierson and Eakle & Eakle, all of Clay, for defendant.

MAXWELL, Judge.

On this certification, the sufficiency of a special plea is on test. The underlying question is whether the plaintiff, an ex-convict, may maintain an action for damages for personal injuries alleged to have been inflicted upon him, while a convict, through the negligence of the defendant.

By his declaration, plaintiff alleges that on the 23rd of June, 1931, while working with other men on a section of state highway No. 13, in Clay county, the defendant negligently drove her automobile against him, thereby causing him serious physical injuries. To the declaration the defendant filed a general issue plea and a special plea, in the latter of which she alleges that on the 11th of February, 1931, in the intermediate court of Kanawha county, the plaintiff was convicted of a felony and sentenced to confinement for one year in the state penitentiary, and that the plaintiff remained a convict for the year then ensuing; that in consequence of such conviction and sentence of the plaintiff, he does not have cause of action against the defendant on account of the matters set forth in the declaration. The learned trial court considered this special plea to be good and overruled a demurrer thereto. He certified his ruling to this Court for review.

In support of the plea, the defendant takes the position that at the time of the occurrences of which the plaintiff complains he was civiliter mortuus because he was a convict, and therefore cannot maintain an action on account of injuries alleged to have been received by him within the period that he was a convict. The plaintiff says that though he was a convict it did not follow that another might injure him with impunity; further, that upon the completion of his imprisonment there exists no legal impediment to his right to institute and prosecute this action.

At common law, the attainder which operated upon pronouncement of sentence for treason or other felony embraced two principal incidents, forfeiture of estate and corruption of blood; and to a variable extent, the extinction of civil rights. The latter, when fully operative, being denominated civil death, civiliter mortuus. 13 Corpus Juris, p. 912. By the Constitution of West Virginia, the first two of the common law consequences of attainder are banned from this state. "No conviction shall work corruption of blood or forfeiture of estate."

Constitution of West Virginia, art. 3, § 18. But, what about a convict's civil fights?

The English doctrine of loss of civil rights upon conviction and sentence for felony is attended with much uncertainty. in the first place, there is confusion in the old books as to the cases in which it became operative. It certainly applied to persons entering into religion or abjuring or banished from the realm. 8 Ruling Case Law, p. 705. "The civil death commenced, if any man was banished or abjured the realm by the process of the common law, or entered into religion; that is, went into a monastery, and became there a monk professed: in which cases he was absolutely dead in law, and his next heir should have his estate. For, such banished man was entirely cut off from society; and such a monk, upon his profession, renounced solemnly all secular concerns." Blackstone's Commentaries, book 1, part II, p. 132; 1 Tucker's Commentaries, p. 39. But to just what extent the doctrine of civiliter mortuus, in either limited or unlimited form, applied otherwise, there is indefiniteness. This was forcefully emphasized by the Supreme Court of New York in the case of Avery v. Everett, 110 N. Y. 317, 18 N. E. 148, 155, 1 L. R. A. 264, 6 Am. St. Rep. 368, wherein the court said: "Any one who takes the pains to explore the ancient and in many respects obsolete learning connected with the doctrine of civil death in consequence of crime, will find that he has to grope his way along paths marked by uncertain flickering, and sometimes misleading lights; and he cannot feel sure that at some point in his course he has not missed the true road." But while this presents a very interesting field for exploration, it is not necessary that such be here undertaken, because, whatever may have been the ramifications of impairment of civil rights under the ancient common law, there seems to be no uncertainty that under that law upon the restoration of the capacity of a felony convict to sue he might institute and prosecute an action for "any personal wrong done to him before or after the commencement of the period of his disability, e. g.,.for an assault;" Dicey on Parties, p. 3. Whether, under that law, such restoration could come about only through pardon need not now be considered, because, with us, the completion of the term of imprisonment imposed upon a felon restores him to his civil rights, save only as otherwise specifically provided by law. Webb v. County Court of Raleigh County, 113 W. Va. 474, 16S S. E. 760. Other statements with reference to the right of an ex convict to sue for wrongs suffered by him while a convict, follow: "And, after a pardon, a person injured while under attainder might support an action in his own name to recover damages." 1 Chitty's Criminal Law (5th Am. Ed.) p. 726. "And if a person under an attainder be beat or maimed, or a woman in the like circumstances ravished, they may, after a pardon, maintain an action or appeal, as their cases respectively may require. And though before a pardon they are disabled to sue in their own names, I make no doubt that they are intitled to prosecute, according to the nature of their respective cases, in the name of the King, who will do equal right to all his subjects." in re Angus Macdonald, Foster's Crown Cases, 59, 63. in support of the same proposition, the last...