Posten v. Baltimore & O. R. Co

• Decision Date: 24 April 1923
• Docket Number: (C. C. No. 220.)
• Citation: 117 S.E. 491
• Court: West Virginia Supreme Court
• Parties: POSTEN v. BALTIMORE & O. R. CO. et al.

117 S.E. 491

POSTEN

v.BALTIMORE & O. R. CO. et al.

(C. C. No. 220.)

Supreme Court of Appeals of West Virginia.

April 24, 1923.

(Syllabus by the Court.)

Case Certified from Circuit Court, Marion County.

Action by Homer C. Posten against the Baltimore & Ohio Railroad Company and others. On certified questions. Dismissed for want of jurisdiction.

H. S. Lively, of Fairmont, for defendants.

MEREDITH, J. The circuit court of Marion county, on its own motion, ' certifies to this court for review certain questions arising on the sufficiency of plaintiff's declaration.

The action is for the recovery of damages for personal injuries sustained by plaintiff while attempting to cross certain tracks of the Baltimore & Ohio Railroad Company, at or near a highway crossing in the town of Lumberport, Harrison county. The declaration sets out the circumstances giving rise to the accident and alleges various acts and omissions said to constitute negligence on the part of defendants, which acts and omissions, it is averred, were the proximate cause of the injuries sustained.

Two defendants are named—the Baltimore & Ohio Railroad Company, a corporation, and Walker D. Hines, Director General of Railroads—and the declaration alleges that they were operating the railroad in May, 1919, when the accident occurred, and that they are guilty of the acts of negligence complained of. Defendant objects to the joining of the railroad company and the Director General as defendants in the same action, and it is upon this question alone which the circuit court would have us pass on this review. It comes before us on the following certificate:

"The circuit court of said county, of its own motion, hereby certifies to the said Supreme Court of Appeals that on the declaration of the plaintiff, Homer C. Posten, the following points of law have been made:

"The defendant Baltimore & Ohio Railroad Company moved the court to dismiss this action as to it, the said Baltimore & Ohio Railroad Company, on the ground that the alleged cause of action set forth in the declaration, if any such cause of action there was or is, is shown by said declaration to have arisen during the period of federal control of railroads, when the said Baltimore & Ohio Railroad was in the possession, use, control, and operation of the President of the United States, acting by and through the Director General of Railroads, and consequently was not liable in the premises.

"A certified copy of said declaration, on which the judgment of your honors is desired, together with a copy of the court's decision upon such question, is herewith presented."

Can this court consider the question in controversy upon the certificate quoted? We think the very general misapprehension on the part of the bar as to the practice of this court in reviewing certified cases under section 1 of chapter 135 of the Code justifies us in going into this matter in some detail. To do so in this case, it is necessary that we call attention to the pleadings appearing in the record.

At. August, 1920, rules, plaintiff filed his declaration. We have already noted its salient parts in so far as the present controversy is affected. Counsel for defendants having suggested on the record that James C. Davis, the then Director General of Railroads, be substituted for Walker D. Hines, resigned, the court on November 28, 1921, entered an order making the substitution and directed that the case proceed against the said James C. Davis, Director General, as aforesaid. On the same day, and in the same order, the court sustained the further motion of defendants' counsel that the action be dismissed as to the Baltimore & Ohio Railroad Company, on the ground set out in the certificate above. The paragraph of the order sustaining the motion for dismissal concludes as follows:

"And the court, having maturely considered the matters of law arising upon said motion, is of opinion that it is well taken, and doth accordingly sustain the same, and doth hereby dismiss this action as to the said Baltimore & Ohio Railroad Company. And it is considered by the court that the said Baltimore & Ohio Railroad Company do recover of and from the plaintiff, Homer C. Posten, its costs about its defense of this action in this behalf expended."

Though the record is silent as to this court's disposition of the circuit court's certification of the question arising on the dismissal order, the brief of defendants' counsel informs us that the clerk of this court notified them by letter that, since the order of dismissal complained of was final in character, it was therefore reviewable here only by writ of error, and that he therefore returned the record to the office of the circuit clerk. Clearly that is all that could have been done under our statute, which makes no provision for certifying to this court a circuit court's ruling in entering final orders.

"The correctness of the ruling of a trial court sustaining a demurrer to a bill, but not dismissing it, may properly be considered by this court upon certificate, as authorized by section 1, c. 135, Code; but the court will not consider that part of the order dismissing from the suit one or more, but not all, of the parties defendant, such action being final as to them, and, if erroneous, correctable only upon appeal." Heater v. Lloyd, 85 W. Va. 570, 102 S. E. 228.

The letter returning the record seems to have been dated December 12, 1921. In order, therefore, to bring the case within the purview of the statute, and the rules of this court, the circuit court, on February 11, 1922, during the same term at which the order of dismissal was entered, at the...