Snyder v. Philadelphia Company.
| Decision Date | 21 November 1903 |
| Citation | 54 W.Va. 149 |
| Court | West Virginia Supreme Court |
| Parties | Snyder v. Philadelphia Company. |
The summons in an action of tresspass on the case is not a part of the record until made so by oyer. (p. 151).
Advantage of a variance between the wnt and declaration can be taken by plea in abatement only and after oyer. (p. 151.)
A summons setting forth the full corporate; name of a defendant corporation, without reciting that it is a corporation, is sufficient, (p. 153).
The owner of a gas well, situated near a public highway, may lawfully open it for the purpose of allowing the gas to blow the water out of it, although the noise thereby made is clearly such as to frighten the horses of persons riding or driving along the highway; but, in doing so, he must exercise care not thereby to inflict injury upon such persons or their property, (p. 153).
Persons using horses on the highway in close proximity to such well, and seeing an agent of the owner at or near it, have the right to presume that he will not open it without warning, or first looking for travelers on the road, and are not guilty of contributory negligence in failing to turn and fly from it, or in failing to give warning of their presence, (p. 155).
When, by the negligent blowing off of such well, a teamster's horses become frightened, and, in attempting to control them, a line breaks, causing him to fall from his wagon, whereby he is injured, the proximate cause of the injury is the blowing off of the well, although the line is weak and wholly insufficient for such an emergency, (p. 186).
In such action, if the declaration shows the jurisdiction of the court, and no plea in abatement has been filled, the judgment will not be reversed for want of proof of the venue as laid, (p. 159).
Error to Circuit Court, Wetzel County.
Action by Robert Snyder against the Philadelphia Compan)^. Judgment for plaintiff, and defendant brings error.
Affirmed.
Pucker, Anderson & Hughes, J. W. McInttre, and E. L. Robinson, for plaintiff in error.
John A. Howard, for defendant in error. Poffenbarger, Judge:
As the defendant in error, Robert Snyder, driving a two horse wagon loaded with baled hay, along a public road in Wetzel County, approached a point in the road from which a gas well owned by The Philadelphia Company of West Virginia stood about fifty feet distant, W. W. Little, an agent and employee of said company, opened the valve or gate of the pipe in which the gas was confined under great pressure, and permitted it to escape, thereby causing a hissing and roaring noise, which frightened plaintiff's horses and caused him to be thrown or to fall, from the top of the load of hay to the ground, where the wheels of the wagon passed over his leg, badly fracturing it and inflicting, as is claimed, permanent injury. In an action against the company, he recovered a judgment for the sum of two thousand, five hundred dollars, as damages for the injury inflicted by the alleged negligence of said company. Of this judgment, said company complains.
The first assignment of error is predicated upon the action of the court in overruling the demurrer to the declaration and each count thereof. Upon the demurrer an effort is made to take advantage of the failure of the summons to say or recite that the 's Hcris; 4 Munf. 94. To have availed itself of the pica in abatement, oyer of the writ must have been had and the plea in abatement filed before any other plea was put in. A plea in abatement raises the question of jurisdiction, and after a general appearance, the jurisdiction of the court for want of sufficient process cannot ordinarily be raised. 4 Min. Ins. 1266. Objections which do not go to the substance of an action are treated as waived, if not made when the occasion of them arises. Harvey v. Skipwith, 16 Grat. 410. By appearance to the action for any other purpose than to take advantage of the defective execution or non-execution of process, a defendant places himself expressly in the situation in which he would be if process were executed upon him. Mahany v. Kepliart, 15 W. Va. 619; Bank v. Bank, 3 W. Va. 386; Lumber Co. v. Lance & Co., 50 W. Va. 636. Had all these dilatory steps been taken by the defendant, they might have been unavailing even under adverse rulings of the courts, 'for many decisions hold that it is unnecessary to append the descriptive words, "a corporation". See Gilei v. Store Co., 29 Grat. 565, in which both writ and declaration omitted the words, but were held good. Woolf v.. Steamboat Co., 62 E. C. L. 103; Norris v. Stalls, H!ob. 110, Henriqu.esv. West India Co., 2 Ld. Raym. 1534; Reese v. Baird, 5 Rand. 326; Douglass v. Railroad Co., 44 W. Va. 267; Dry Fork R. R. Co. v. Slate, 50 W. Va. 235; Railroad Co. v. Sherm, ans Admx, 30 Grat., 602. In Woolf v. Steamboat Co. and Norris v. Statls, it was said that the name argues a corporation, and that setting it forth impliedly amounts to an allegation that the defendants arc a corporate body. The view has been adopted and is still adhered to both in Virginia and this State. Gillet v. Stove Co. and Dry Fork R. R. Co. v. State, supra. It is inferred from the absence of anything in the brief in support of this assignment of error, that it has been abandoned. At any rate, it is clear that there is nothing in it.
The criticism of the declaration is that it fails to show that the defendant violated any duty which the company owed to the plaintiff. It alleges that the defendant owned, controlled and operated a gas well near the public highway and that it was its duty to use due care in managing and operating said gas well and in blowing the same off so as not to interfere with the lawful use of said highway by persons riding and driving thereon, but that it neglected to do so. It also avers that the plaintiff, on the 28th day of April, 1897, was, as a teamster, driving his team upon and over said highway, hauling oil well supplies, merchandise, hay, &c., in a wagon drawn by two horses driven by him, and when he, with his team, came to a point on said highway, near to the said gas well, said defendant, through its agents, servants and employees, then and there in charge of said gas well, not regarding its duty in the premises, carelessly and negligently managed and operated said gas well, and so carelessly and negligently caused and permitted the gas from said well to he discharged and escape with great force and in large quantities into the air, making a loud, hissing, unusual and frightful noise, calculated to frighten horses and cause them to run away, and which did then and there frighten said horses so driven by the said plaintiff, and caused said horses to become unmanageable and run away, whereby the said plaintiff was thrown, &c.
Although the well was owned by the defendant company, and was purely private property, the use of that property by the defendant is restricted by the law so far that it cannot be, either by negligence or wantonness, so operated or handled as to inflict injury upon persons, or their property. The operation of a gas well is in no sense unlawful, and as it is necessary to relieve the well of the accummulation of water by opening the gate and allowing it to blow out, this operation is also lawful and cannot be regarded as a nuisance per se. But it is well settled that a business or transacation which is in itself lawful may be so used or so conducted as to become a nuisance and make the owner liable for injury resulting therefrom. So a man may make lawful use of his property, but if he is so negligent and careless in the use thereof as to inflict injury upon others, he must answer in damages.
It is a principle vital and indispensable in organized society that every one must so use his property as not to injure others. Although he has the...
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