Shepherd v. Pocahontas Transp. Co.

• Citation: 100 W.Va. 703
• Decision Date: 02 February 1926
• Docket Number: (No. 5481)
• Court: Supreme Court of West Virginia
• Parties: Hettie Shepherd v. Pocahontas Transportation Companyand Ocean Accident & Guarantee Corporation

100 W.Va. 703

Hettie Shepherd

v.Pocahontas Transportation Company and Ocean Accident & Guarantee Corporation

(No. 5481)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1926.

Decided February 2, 1926.

Carriers Pleading Process Points 1, 2 and 3 of the syllabus in Golda O'Neal v. Pocahontas Transportation Company et al., 99 W. Va. 456, 129 S. E. 478, approved and applied.

Carriers, 10 C. j. §1406: Pleading, 31 Cyc. pp. 292, 438: Process, 32 Cyc. p. 534.)

(Note: Parenthetical references by Editors, C. j. Cyc. Not part of syllabi.)

Error to Circuit Court, McDowell County.

Action by Hettie Shepherd against the Pocahontas Transportation Company and another. Judgment for plaintiff, and defendants bring error.

Reversed.

Sanders, Crockett, Fox & Sanders, for plaintiffs in error. Harman & Howard, for defendant in error.

Lively, Judge:

This writ is to a judgment of the circuit court rendered March 3, 1925, for $10,000 damages in favor of plaintiff, for personal injuries and for damages to her personal property while a passenger on a bus used and operated by defendant transportation company as a public carrier. The Ocean Accident & Guarantee Corporation, an insurance company which insured the transportation company against damages of this character, is a defendant and the judgment is against it also. Both defendants prosecute error.

The suit arises out of the same accident mentioned in the certified case of Golda O'Neal v. Pocahontas Transportation Company et al., 99 W. Va. 456, 129 S. E. 478; and the damages claimed in each of these cases are almost identical except in the character of injuries and amounts sued for. As in the O'Neal ease, defendants interposed a demurrer to the declaration, on the grounds that there was a misjoinder of counts and a misjoinder of parties defendant. We decided in that case that the demurrer was well taken on both of these points. The brief and argument of counsel for appellees is upon the proposition that the court was in error in the O'Neal case in holding that the declaration was bad. Practically the same authorities are cited and the same argument made in this case as in the O'Neal case.

Appellant assigns many grounds of error which it will not be necessary or proper to consider if the declaration is in fact bad.

We can perceive no good reason for a reversal of the holding in the O'Neal case, either upon the ground that there was a misjoinder of counts or that there was a misjoinder of parties defendant, either of which rendered the declaration bad. On the contrary, further investigation convinces us that the former holding sets out the correct principles, and is supported by abundant authority and sound reasoning.

In cases of this character against public carriers, if there be doubt as to whether the declaration or count is upon the contract or is upon the tort which is charged as the breach of the contract, we find that the courts lean to the construction that the suit is for the tort, one reason being that under such actions greater latitude is allowed to the plaintiff in the prosecution of his case and in the recovery of damages. The measure of damages is quite different in many cases, as was pointed out in the opinion in the O'Neal case. Punitive or exemplary damages are not recoverable in the action on the contract; but upon the action of tort they are recoverable; and an inspection of the declaration under consideration discloses that the charge of negligence on the part of defendants which caused the accident was committed by its agents and servants "negligently, carelessly, wilfully, wrongfully and in utter disregard of plaintiff's rights and safety as such passenger. '' Under the declaration as one in tort, punitive or exemplary damages could be recovered, if the evidence warranted; but if the count be on the contract they could not be recovered. Clearly this allegation of wanton and wilful negligence, together with the facts pleaded on which they are based, makes this count (the second count in the declaration) "sound in tort", which means that it has the nature or effect of a tort. The rule is to construe a count as partaking of the nature of the action stated in the writ, if possible. But if the form and structure forbid, it cannot be so construed. Ferrill v. Brewis, 25 Grat. 765. The gist or gravamen of the count is a tortious act which constituted a breach of the contract. Vol. 3, Michie on Carriers, sec. 3094, page 2565, says: "In cases of this kind the character of the action must be determined by the nature of the grievance rather than by the form of the declaration, and it...