Spiker v. Bohrer. -

• Decision Date: 10 December 1892
• Citation: 37 W.Va. 258
• Parties: Spiker v. Bohrer. -
• Court: West Virginia Supreme Court

37 W.Va. 258

Spiker

v.Bohrer.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1892,

Decided December 10, 1892.

1. Alleg at r ons Ple a di ng Regit a l.

It is a general rule of pleading that whatever facts are necessary to constitute the cause of action they must be directly and distinctly stated and not by way of recital.

2. Allegations PLEAmNG Recital Demurrer.

In actions of trespass or trespass on the case for torts, if the facts necessary to state a cause of action are stated under a quod cum or after a whereas, such mode of statement must be regarded as recital, and such count is fatally defective on general demurrer.

W. II. Travers for plaintiff in error, cited 12 S. E. Rep. 699; Rev. Code (1792) c. 76, § 27; Code (1819) c. 128, § 101; Code (1868) c. 125, § 29; 16 Graft, 313; 11 W. Va. 107; 9 Graft. 188; Bac. Abr. (Gwellin) 369; 2 II. & M. 595-602; 3 II. & M. 134; Bar. L. Pr. 105; 10 W. Va 470, 474; 21 W. Va. 377; 27 W. Va. 32; Bar. L. Pr. 158; 26 Wis. 372; 2 Add. Tor. 521 (note); 2 Greenl. Ev. 505 (note); 53 Am. Dec. 338; Id. 345 (n.); 3 Lawy. Rep. 529.

T. W. B. Duckwell and J. S. Wisner for defendant in error, cited 1 Call 83; 2 Wash. 187; 2 Call 39; 2 Mass. 358; Bar. L. Pr. p. 105, s. 9; 22 W. Va. 255; Id. 271; 7 W. Va. 443; 3 Am. & Eng. Ency. L. 820; Harp. 83; 3 Nev. 141; 2 A. K. Marsh. 465; 30 Ga. 829; 59 Cal. 345; 3 Ind. 552; 10 la. 506; 18 la, 43; 6 La. Ann. 658; 72 Mo. 518; 2 Add. Torts 518; 11 East 23, 24; 2 Caines 292; 6 Rob. (N. Y.) 838; 32 la. 88; 30 la. 570.

English, Judge:

This was an action of trespass on the case, brought by Harrison Spiker against C. H. Bohrer in the Circuit Court of Morgan county. The declaration contained but one count, and was demurred to, which demurrer was sustained, and the plaintiff obtained leave to file an amended declara- tion, which amended declaration contained but one count, and reads as follows:

"Harrison Spiker complains of C. H. Bohrer in custody," etc., "of a plea of trespass on the case, for that whereas the said defendant, contriving and wrongfully and justly intending to injure the said plaintiff, and to deprive him of his domestic peace and happiness, and of his comfort in the society of Mary Susan Mahan, his infant stepdaughter and servant, to wit, on the 1st day of May, 1888, and in divers other days and times between that day and the day of exhibiting this bill, at and in said county of Morgan debauched and carnally knew the said Mary Susan Mahan, then and there, and from thence for a long space of time, to wit, hitherto, being the stepdaughter and servant of the said plaintiff, whereby the said Mary Susan Mahan became sick and pregnant with child, and so continued for a long space of time, to wit, for the space of nine months next ensuing, whereby the said plaintiff during all that time lost and was deprived of, and continued to lose and be deprived of, his domestic peace and happiness, and his comfort in the society of his stepdaughter and servant. And also by means of the said several premises the said plaintiff was forced and obliged to and did necessarily pay, lay out, and expend divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of one hundred dollars, in and about the nursing and taking care of the said Mary Susan Mahan, his stepdaughter and servant, to the damage of the plaintiff ten thousand dollars, and therefore he brings his suit."

This amended declaration was also demurred to by defendant, which demurrer was overruled, to which action of the court the defendant excepted, and on the 28th day of August, 1890, the defendant interposed a plea of not guilty, and the case was submitted to a jury, which, on the 1st day of September, 1890, resulted in a verdict in favor of the plaintiff for one thousand dollars, and thereupon the defendant, by his attorney, moved the court to set aside the verdict and grant a new trial First, because the verdict was against the facts and weight of evidence; second, because of misdirection of the court as to the law; third, be- cause the damages were excessive; which motion was overruled, and the defendant excepted, and the court proceeded to render judgment upon said verdict.

During the trial of said cause the defendant took several hills of exceptions, which were saved to him and made a part of the record in the cause; and from said judgment this writ of error was obtained.

The first error assigned by the defendant is to the ruling of the court in overruling said demurrer to said amended declaration because the same was defective in stating the grounds of action under a quod cum or whereas, the demurrer should have been sustained.

Bouvier, in his Law Dictionery, under the heading "Quod Cum," says: "In pleading; for that whereas; a form of introducing matter of inducement in those actions in which introductory matter is allowed to explain the nature of the claim, as assumpsit and case. This form is not allowable to introduce the matter which constitutes the gravamen of the charge, as such matter must be stated by positive averment, while quod, cum introduces the matter which depends upon it by way of recital merely."

It will be perceived that this amended declaration contains no positive affirmative averment by reason of the fact that it commences with the words "for that whereas," and all that follows in the count is clearly by way of recital. By reason of the use of these words in the commencement we naturally look for some positive averment to follow as a deduction or sequence from the recital, but we look in vain, as the entire count is mere recital.

It is true that section 29 of chapter 125 of the Code provides that "on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the deelaration or pleadings, whether it has heretofore been deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment according to law and the very right of the cause can not be given," and section 9 of the same chapter provides that "no action shall abate for want of form where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case."

The first of these sections is found in the Code of 1849, and the same, in substance, is found in the Code of 1819; it being provided in section 101, c. 128, of the Code of 1819, that, "where a demurrer shall be joined in any action, the court shall not regard any other defect or imperfection in the writ, return, declaration, or pleading than what shall be specially alleged in the demurrer as causes thereof, unless something so essential to the action or defence as that judgment, according to law and the very right of the case, can not be given, be omitted."

But by this section, it will be seen, a special demurrer was recpuired to raise the questions. The revisors of the Code of 1849, in their report, state the object of this change as follows: "This action is so framed as to prevent a demurrer being sustained to any pleading for such matters of form as heretofore were required to be specially alleged by causes of demurrer, and which, if so alleged, were available. Its effect is to abolish special demurrers." Report of Revisors, p. 849, note.

This effect has been attributed to said statute by the court of appeals of Virginia in the case of Smith's Adm'rs v. Lloyd's Ex'r, 16 Graft, 318. Moncure, J. says, in speaking of a declaration the sufficiency of which he was considering: "But whether or not, according to the strict and technical rules of pleading, the averment, being in the very words of the deed, is sufficient, or should have been more specific, or should have been only of matter of fact, certainly the defect, if there be one, is only of form, and not of substance; and, since special demurrers have been abolished, is not now ground of demurrer;" quoting said section of the statute, showing that he thus construed its meaning.

If we examine the rulings of the court of appeals of Virginia on this question, we find that in the case of Ballard v. Leavell, 5 Call, 534, Roane, J., in delivering his opinion, says: "In the case before us I am compelled to consider the declaration as radically defective in not making a positive charge of the trespass therein mentioned. Finding, in Bae. 345, a direct authority to the point, which was not cited at the bar, I shall rely on it, in addition to the cases which were cited. It is there held that the declaration must contain such certain affirmation that it may be traversed; for, if there be no certain affirmation to make the declaration to itself traversable, it will not be cured after verdict because it is a defect in substance, as, if the declaration be quod cum the defendant assaulted him, and the defendant plead not guilty, here is nothing put in issue, for the pleadinge have affirmed nothing; and, though the defendant be found guilty, yet can not the plaintiff have judgment, because nothing is positively affirmed. This position is believed to be entirely supported by all the cases, ancient and modern, and has never been departed from, but in relation to declarations in the court of common pleas in England, and there only on the ground that the writ is incorporated with and made part of the declaration, and is considered to cure the defect. This has never, however, been holden to be the law in the court of king's bench, except when acting as a court of error upon proceedings in the court of common pleas. However the statute of jeofails may be construed to operate, it has often been decided here that it did not extend to cure an omission to state the very substance and gist of the action;" citing Winston v. Francisco, 2 Wash. (Va.) 187.

In the case of Hord's Ex'x v. Dishman, 2 H. & M. 602, the same judge, in his opinion, says: "On the point of quod cam the declaration in the present case is precisely like the one in the...