Owen v. Appalachian Power Co.

• Court: West Virginia Supreme Court
• Writing for the Court: WILLIAMS, P. PER CURIAM.
• Citation: Owen v. Appalachian Power Co., 78 W.Va. 596, 89 S.E. 262 (W. Va. 1915)
• Decision Date: 30 November 1915
• Parties: OWEN v. APPALACHIAN POWER CO.

89 S.E. 262

78 W.Va. 596

OWEN v. APPALACHIAN POWER CO.

Supreme Court of Appeals of West Virginia.

November 30, 1915

On Rehearing, June 3, 1916.

Syllabus by the Court.

It is not necessary that a next friend should be appointed by a court, except in a proceeding before a justice, in order that he may prosecute a suit for and in the name of an infant.

An action for personal injury is transitory, and follows a plaintiff wherever he goes. Such action may be brought wherever jurisdiction of defendant may be obtained.

A foreign corporation, having its principal office in another state, but doing business in this state, may be sued here and service of process against it, accepted by the state auditor, is binding.

In an action for negligence the declaration need not aver the particular act of negligence; it is sufficient if it avers the manner and means of plaintiff's injury, and that it was caused by defendant's negligence.

A verdict, supported by oral testimony which is wholly inconsistent with natural laws and physical facts, admitted to be true or established by uncontroverted evidence, showing such testimony to be false, should be set aside as being contrary to the weight of evidence.

An electrical power company is required to exercise a high degree of care in the construction, maintenance, and operation of its wires, charged with a dangerous electric current; but such high degree of care is only reasonable, and is to be determined by the usage and custom prevailing among electric power companies.

The unexplained breaking of an insulator, which causes a highly charged electric wire to sag from the arm of the pole supporting it to a distance of six or seven feet from the ground, at a place remote from any public highway, and its remaining in that condition for a period of 24 hours, do not prove negligence, in the face of direct positive, and undisputed testimony that reasonable care was observed in the construction, maintenance, and operation of the line. In such case, the presumption of negligence arising from the mere falling of the wire is overcome by direct proof of diligence.

In an action brought in this state to recover for personal injury received in another state, the right of recovery depends on the laws of such other state.

Injury without proof of negligence, gives no right of recovery; and where it is shown by the overwhelming weight of evidence that the injury resulted from plaintiff's negligence, or was an inevitable accident, a verdict for plaintiff cannot stand.

If the evidence is such that a verdict for plaintiff, if one should be so found, should be set aside, the court may direct a verdict for the defendant.

Error to Circuit Court, Mercer County.

Action by Reuben Owen against the Appalachian Power Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.

Miller J., dissenting.

Robert E. Scott, of Richmond, Va., Price, Smith, Spilman & Clay, of Charleston, and Russell S. Ritz, of Bluefield, for plaintiff in error.

J. R. Dillard and Sanders, Crockett & Kee, all of Bluefield, for defendant in error.

WILLIAMS, P.

Defendant is prosecuting this writ of error to a judgment of the circuit court of Mercer county against it for $15,000, recovered by Reuben T. Owen in an action for personal injury, alleged to have been caused by defendant's negligence.

The Appalachian Power Company is a Virginia corporation engaged in the manufacture and sale of electrical power. The current is generated by means of water power on New river in the state of Virginia, and is transmitted from the power plant to transformer houses where the current is increased, regulated, and controlled, and thence carried by means of transmission wires to its customers. It maintains three or four principal lines. One line runs west to Saltville, and two others run to Switchback, one of them by the way of Linkous Ferry. This line is spoken of in the record as line D-B. All three lines run from the same transformer house. Line B runs also to Bluefield, in West Virginia. Lines A and B parallel each other for some distance, and are attached to the same set of poles. They extend across a farm in Bland county, Va., occupied by S. J. Lambert. Line B carries a current of 88,000 voltage, and is the one by which plaintiff was injured. At the time of his injury plaintiff was 16 years and 7 months old, and was employed by Mr. Lambert to do various kinds of work on the farm and on a sawmill being operated thereon. On Sunday, the 10th of August, 1913, he was told by one of Mr. Lambert's sons to take a horse to a certain pasture field and turn him out. He did so, but did not return to the house by the same way he went. After he had turned the horse in the field, he says he picked and ate some blackberries and then started home by another route, not a traveled road, which brought him underneath the highly charged electric wires. When he came within 70 or 75 feet of the line, he saw that one of them was loose from the pole and sagged down within 6 or 7 feet of the ground; and, thinking, as he says, he was in no danger unless he touched the wire, he attempted to pass under it and was horribly burned and maimed. His left hand and forearm were burned to a crisp, and the upper part of his arm was so severely burned that it had to be amputated at the shoulder. The toes on both feet were so badly burned that some of them had to be amputated, and the ligaments removed from parts of his feet. There were other burns about his body, not so severe as these. A number of little holes were burned through his hat, his head was blistered in three or four places, and there wer e also blisters burned on other parts of his body.

Being an infant, plaintiff sued by his next friend, George L. Dillard. Suit was brought in Mercer county, W. Va., and process against defendant was accepted by J. S. Darst, auditor, and was also served personally upon Herbert Markle, defendant's general manager and agent residing in Mercer county. The officer's return states that defendant had no president, secretary, cashier, treasurer, trustee, director, or other chief officer in said county.

Defendant filed three special pleas, alleging, in one, that plaintiff is an infant and that George L. Dillard was not his next friend and had no right to bring or maintain the action; in another, that defendant is a corporation, chartered under the laws of Virginia, and has its principal office in the city of Richmond, in that state, where its principal officer, upon whom service may be had, resides, that the cause of action, if any, arose in the state of Virginia, and that plaintiff was, at the time he instituted his suit, and still is, a resident of that state, and was never, at any time, a citizen or resident of the state of West Virginia; and the third plea alleges the insufficiency of the writ and return, presenting, in different form, the same question presented by the second plea. On motion of plaintiff all these pleas were stricken out, on the ground that they constituted no defense. Three days previous to that order, the court made an order ratifying and approving the selection of said Dillard as plaintiff's next friend, and authorizing him to continue the prosecution of the suit. To all of the foregoing rulings defendant excepted.

Because of his infancy, it is contended plaintiff had no right to appear in court, either in person or by attorney, and that he cannot do so by next friend, unless and until such next friend is appointed by the proper authority, and that a person suing in a representative capacity must allege and prove his right to bring the action, which was not done in this case. The following recent decisions of this court are cited in support of the last-mentioned proposition, viz.: Austin v. Calloway, 73 W.Va. 231, 80 S.E. 361, Moss, Adm'x, v. Campbell Creek Coal Co., 83 S.E. 721, L.R.A. 1915C, 1183, and Crockett, Adm'r, v. Keystone Coal & Coke Co., 75 W.Va. 467, 84 S.E. 948. The rule announced in those cases does not apply here. Plaintiff himself, although an infant, is prosecuting his suit in his own name, and, notwithstanding he is required to do so by prochein ami, he is still the real party in interest, and the one who is entitled to the right of action, and the proceedings are conducted in his name. True, a personal representative is technically entitled to the right of action and sues in his own name, but in a representative capacity. The right which he seeks to enforce is not personally his, and hence he is required to allege, and, if denied, to prove, his authority to represent the decedent. But an infant, who comes into court by next friend, comes in his individual right, and, in the absence of allegation or showing of the next friend's unfitness, it will be presumed that he is a suitable person. Certainly so, if the infant, as in this case, is over 14 years of age. At that age the statute permits an infant to select his own guardian, a much more important office than prochein ami. It has never been the practice of the courts of this country, so far as we know, to appoint a next friend for infants, and such is certainly not the rule in this state.

Counsel for defendant rely upon Blair v. Henderson, 49 W.Va. 282, 38 S.E. 552. But the decision in that case rests on a statute which applies only to proceedings in a justice's court. The court no doubt has the power, should it be satisfied that a next friend is an improper person, to remove him and substitute another person in his stead. But Dillard's fitness is not questioned; the plea does not aver that he is not a fit person, or not able to pay any judgment that might be rendered against him for costs.

The action is for a personal injury, and therefore...