Siever v. Klots Throwing Co. Of West Va.

• Decision Date: 20 April 1926
• Docket Number: (C. C. No. 383.)
• Citation: 132 S.E. 882
• Court: West Virginia Supreme Court
• Parties: SIEVER. v. KLOTS THROWING CO. OF WEST VIRGINIA.

132 S.E. 882

SIEVER.

v.KLOTS THROWING CO. OF WEST VIRGINIA.

(C. C. No. 383.)

Supreme Court of Appeals of West Virginia.

April 20, 1926.

(Syllabus by the Court.)

Certified Questions from Circuit Court, Mineral County.

Action by Charles W. Siever, who sues for the use of the Keyser Canning Company, against the Klots Throwing Company of West Virginia. After ruling on a demurrer to the declaration and each count thereof, and overruling same, the trial court certified questions. Demurrer overruled; special pleas rejected.

Harry G. Fisher, of Keyser, for plaintiff.

Chas. N. Finnell, of Keyser, and Horace P. Whitworth, of Westernport, Md., for defendant.

MILLER, J. The questions certified involve the correctness of the rulings of the circuit court on the demurrer to the plaintiff's declaration, and each count thereof, and to the filing of defendant's special pleas Nos. 1 and 2, and plaintiff's special replication thereto, and the rejection of defendant's special plea No. 3, and of plaintiff's special reply thereto, conditioned on the rulings of this court with respect thereto.

The cause of action is the damages originally sustained by Charles W. Siever, by the burning of his factory building at Keyser, W. Va., the result of the alleged negligence of defendant, one of the occupants thereof as a lessee; and it is the same cause of action which the Keyser Canning Company, suing as assignee thereof, joined with an individual cause of action against the same defendant, for the destruction of its property by fire, while occupying as a lessee a portion of the same building; and the rights of the parties respecting which cause of action were formerly before this court, on two former writs of error, as reported in 118 S. E. 521, 94 W. Va. 346, 31 A. L. R. 283, and 128 S. E. 280, 98 W. Va. 487.

On the last preceding hearing here, the point was for the first time made by counsel for defendant, that an assignee of a cause of action arising out of tort cannot sue in his own name, or join the same with an individual cause of action, though arising out of the same acts of negligence against the same defendant, but that a suit respecting such assigned claim would have to be in the name of the assignor Siever, suing for the use of the assignee, the statute, section 14, chapter 99 of the Code, not covering causes of action arising ex delicto. It is fair to presume that counsel for plaintiff, in joining the two causes of action in the former suit overlooked the fact that the provisions of said statute were restricted to causes of action arising ex contractu. Whatever the fact, the question was not presented until after the lapse of five years, and when a new suit upon the original cause of action would be barred by the statute of limitations.

When the point was thus made by counsel, and induced thereto for the purpose of the new trial awarded, we decided, re-affirming the proposition then recently before affirmed in Barkers Creek Coal Co. v. Alpha-Pocahontas Coal Co., 123 S. E. 803, 96 W. Va. 700, that:

"An assignee of a claim for damages arising out of tort, as distinguished from one arising out of contract, cannot maintain an action against the tort-feasor in his own name or as assignee. The suit should in such cases be in the name of the assignor, for the use of the assignee."

So that on this holding on which defendant had thus procured the ruling of the court, and on remand of the case to the circuit court, the plaintiff procured the suit to be dismissed as to the claim so assigned to it, and the present suit was instituted against defendant in the name of Siever suing for the use of the canning company as assignee of his claim.

The declaration in the present suit, in four counts, in so far as the subject-matter thereof pertains to the assigned claim or cause of action, is substantially the same as the declaration and the several amendments thereof in the original suit, so formerly disposed of.

The points of demurrer assigned and relied on are: (1) That the cause of action did not arise within five years next before the institution of the present suit by Siever, assignor; (2) that if this action should be held to be in effect that of the Keyser Canning Company, a corporation, and not that of Charles W. Siever, the plaintiff therein, the cause of action on which the defendant is now impleaded was voluntarily and on its own motion dismissed by the Keyser Canning Company from its action against the defendant, and therefore it is not entitled to the protection of section 19 of chapter 104 of the Code, tolling the statute of limitations in certain cases, providing, among other things, that "if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or for any other cause, which could not be pleaded in bar of any action, " a new suit "may be brought within one year after such abatement, dismissal, or other cause."

The pleader, anticipating the demurrer and the grounds therefor, and the interposition of pleas Nos. 1 and 2, the first covering the statute of limitations of five years, and the second pleading want of consideration for said assignment, that the said assignment was colorable only and merely to establish a basis for one suit for both causes of action, undertook in the declaration, by proper averments, to plead around the subject matters thereof, and repeated the averments thereof in special replies to said demurrer and pleas. So that the same questions substantially presented by the pleas were presented by the demurrer; and it is practically conceded that if the demurrer was properly overruled, the pleas should also have been denied.

Special plea No. 3, to which plaintiff tendered a special replication, pleaded and relied on the order of the court, of September 22, 1925, made in the original action, and in abatement of the present suit, as follows:

"On the 22d day of September, 1925, came the parties to this suit by their attorneys, and plaintiff asked leave without prejudice to plaintiff as to any action hereafter it may be advised it has, to dismiss the foregoing suit so far as it is assignee of Charles W. Siever, by withdrawing its original declaration and all amendments thereto, together with the bill of particulars pertaining to the real estate. It is therefore ordered that plaintiff as assignee of Charles W. Siever is hereby dismissed without prejudice to plaintiff as to any action it may be advised it may have a right hereafter to institute as to said real estate, and that plaintiff's original declaration and all amendments thereto, together with the bill of particulars as to the real estate shall not be considered in the further trial of this case. Thereupon the plaintiff filed its bill of particulars aggregating $40,630.70 and its supplemental bill of particulars in the amount of $2,423.28 and the defendant entered a plea of not guilty as to the original declaration, the first, the second, the third and fourth amended declarations, together with the bill of particulars and supplemental bill of particulars, and issue was joined thereon by the plaintiff as to all of said pleas."

And it was averred in relation thereto that the motion referred to by the Keyser Canning Company was voluntary, and the dismissal of the suit as to the cause of action sued on in the present case was not made necessary by reason of any adverse ruling of the circuit court of Mineral County against the plaintiff in said action. The special replications by plaintiff to this plea is a denial of the averment that said dismissal was voluntary, but on the contrary was rendered necessary by the court on writ of error as aforesaid, and by which the circuit court in the further proceedings in the case was bound; wherefore, it is alleged the plaintiff herein is protected by section 19 of chapter 104 of the Code. The circuit court was of opinion that if permitted to consider the...