Parfitt v. Sterling Veneer & Basket Co.
| Citation | 69 S.E. 985,68 W.Va. 438 |
| Parties | PARFITT v. STERLING VENEER & BASKET CO. |
| Decision Date | 20 December 1910 |
| Court | Supreme Court of West Virginia |
Submitted February 1, 1910.
Syllabus by the Court.
Defendant's motion to quash the defective return of service of process after appearance at rules, and filing a plea in abatement was properly overruled. Such appearance constituted waiver of all defects in the service of process.
The demurrer to the first count in the declaration in this case was properly overruled.
Defendant filed two special pleas in writing, of accord and satisfaction. Plaintiff put in a general replication thereto. The denial of defendant's motion to require plaintiff to plead more specifically to said special pleas was not error.
Section 40, c. 125, Code 1906, providing that: "Where a declaration or other pleading alleges that any person made endorsed, assigned or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied by an affidavit with the plea which puts it in issue," constitutes a rule of evidence, to be observed on the trial, and not a rule of pleading.
Plaintiff's general replication to defendant's special pleas of accord and satisfactio n, filed, notwithstanding the statute, as at common law, put in issue the handwriting of the contract pleaded, the statute, without affidavit denying the handwriting, rendering proof thereof unnecessary, and cutting off evidence by plaintiff thereon.
Plaintiff's instructions to the jury in this case were pertinent to the issues, propounded correct legal propositions, and the court did not err in giving them, or either of them.
One of said instructions, covering the concrete case, properly told the jury, that if they found from the evidence that plaintiff "complained of the defective and dangerous condition of the machinery and appliances which he was operating, and that the defendant *** promised to have the defects in said machinery remedied and the danger removed, but failed so to do within a reasonable time and in consequence thereof the injuries complained of were inflicted upon the plaintiff, then the defendant company is liable, and the jury should find for the plaintiff, unless the jury believe that the plaintiff failed to exercise reasonable care and caution in doing the work in which he was engaged, taking into consideration the plaintiff's experience, or unless the danger was so palpable, immediate and constant that no one but a reckless person would expose himself to it, even after receiving such promise or assurance."
Another of said instructions properly told the jury, that under the same promises, "plaintiff's subsequent use of such machinery and appliances in the well grounded belief that the same would be put in proper condition, within a reasonable time, *** does not necessarily, or as a matter of law, make him guilty of contributory negligence, and in such case it is a question for *** the jury to say whether, in relying upon such promise, and using said machinery, after plaintiff knew of its condition, he was in the exercise of due care under the circumstances, and the jury are instructed that in such case the burden of proof is upon the company to show contributory negligence on the part of the plaintiff."
It was not error to tell the jury as the court below did in plaintiff's instruction number three, given, that if they found that defendant had violated section 442, punishable by section 447, in failing to safely and securely guard, or give notice of, its dangerous machinery, as required by said section 442, they might take this fact into consideration on the question whether or not defendant was negligent.
Defendant's instructions, given, covered those rejected, and though containing, as proposed, correct legal propositions, were properly modified by the court, and given as modified, to cover the concrete case presented by the evidence, by adding thereto: "Unless the jury believe from the evidence that plaintiff was induced to remain in the employment of said company by the promise of said general manager to correct such unsafe condition, and that the failure to so correct such condition was the proximate cause of such plaintiff's injury."
Defendant by offering evidence of the handwriting of the contract, pleaded in its special pleas, and permitting plaintiff, without objection, and without affidavit filed denying the handwriting, to introduce evidence impeaching the same, and trying the action, and submitting the issues to the jury, as if such affidavit had been filed, thereby waived its right, under said section 40, c. 125, Code, to introduce said writing in evidence, without such proof, and to cut off evidence by plaintiff thereon.
(Additional Syllabus by Editorial Staff.)
Where defendant, after the adverse action of the court on its motion to exclude plaintiff's evidence, proceeds to introduce its own evidence, it waives any error in the ruling.
Error from Circuit Court, Wood County.
Action by Samuel H. Parfitt against the Sterling Veneer & Basket Company. Judgment for plaintiff, and defendant brings error. affirmed.
R. E. Bills and Dorr Casto, for plaintiff in error.
Harold W. Houston and J. Robert Anderson, for defendant in error.
Plaintiff sued for personal injuries sustained while employed as engineer, by having his arm caught between the belt and pulley or shafting on the engine in defendant's factory, and which was thereby greatly lacerated, broken and bruised, resulting in permanent injuries and consequential suffering, pain, etc.
On the trial plaintiff obtained a verdict and judgment for $809.09, and to reverse that judgment defendant has brought the case here on a writ of error.
Among the many points of error assigned and relied on, one relates to the service of process and the refusal of the court to quash the return of the officer thereon; three relate to alleged errors of the court in its rulings on the pleadings. We regard all these points without substantial merit, and will dispose of them briefly, before proceeding to consider the other points, though this is the reverse order in which they have been presented.
The objection to the return by the officer is, that it was not signed by him; that it imports service on Eddy, secretary of defendant company, and not upon the corporation itself, by delivering a copy thereof to some officer upon whom service of process might lawfully be made. Other defects in the return are also suggested. This motion was not made, however, until after the defendant had appeared by counsel, at rules, and filed its plea in abatement, for an alleged variance between the writ and declaration. Such appearance, as has many times been decided by this and other courts, constituted a waiver of defects in the service of process. Groves v. County Court, 42 W.Va. 587, 26 S.E. 460; Fulton v. Ramsey, 68 S.E. 381. No error was committed therefore in overruling the motion to quash.
The trial court sustained defendant's demurrer to the second count, but overruled it as to the first count of the declaration. The first point of error relating to the pleadings is, that the court should have also sustained the demurrer to the first count. We do not think so. We have examined it, and think it states all the elements necessary to constitute a substantial cause of action. The particular act of negligence alleged and relied on, and to which the evidence mainly related, is, that the defendant had so located its engine and force pump in the engine room and on opposite sides of the door or passage way leading from its main building to the engine room as to leave but a very narrow passage between the end of the shaft on the engine and the force pump, through which plaintiff was obliged to pass in the discharge of his duties, and had negligently permitted said shaft and pump to remain in such dangerous, exposed and unguarded position in said room, so that plaintiff while in the discharge of his duties, and while in the act of passing said dangerous, exposed, unsafe and unguarded machinery, without fault on his part had his arm caught between said shaft and the belt, whereby he sustained the injuries complained of. The declaration does allege, in anticipation no doubt of the defense, that while plaintiff knew of, or had ascertained on the day of his injuries, the dangerous and unguarded condition of this machinery, and had called the attention of the defendant thereto, nevertheless he was induced to and did remain in the employment of the defendant, in reliance upon and belief in its promises, that said machinery would be provided with safe and secure guards, which defendant had neglected to do, and by reason whereof and without any fault on his part plaintiff had sustained the injuries complained of.
If we understand counsel for the defendant their suggestion in argument is that this latter allegation discloses knowledge on the part of the plaintiff of the dangerous and unguarded condition of the machinery, and that having thereafter continued in the service of defendant, as alleged, plaintiff assumed the risk of the known and apparent dangers and thereby absolved defendant from all liability resulting therefrom.
Many authorities cited and relied upon by counsel do support the general proposition, that where an employé, with full knowledge and appreciation of the dangers and hazards of his employment, and the negligence of his employer to make the place safe, continues in the service in the unsafe place and subject to the dangers, which are known and fully appreciated by him, he thereby waives performance by the master of the duty imposed upon him by law, in respect to the safety of the place where the service is to be performed. Laver...
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