Starcher v. South Penn Oil Co..

• Citation: 81 W.Va. 587
• Court: Supreme Court of West Virginia
• Decision Date: 05 February 1918
• Parties: Samuel Starcher, Adm., Etc., v. South Penn Oil Co. et al.

81 W.Va. 587

Samuel Starcher, Adm., Etc.,

v.South Penn Oil Co. et al.

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1918.

Decided February 5, 1918.

1. Jurisdiction of County Courts Appointment of Administrators.

The county courts have general jurisdiction over the appointment and qualification of personal representatives of deceased persons, (p. 593).

2. Clerks of Courts Jurisdiction JRecess.

During the recesses of the regular sessions of such county courts, the clerks thereof are clothed with such general jurisdiction, subject to the authority of such county courts at the next regular session to review the action of such clerks, (p. 593).

3. Judgment Collateral Attack Orders and Decrees of Court of

General Jurisdiction.

Ordinarily the orders and decrees of a court touching a subjectmatter over which it has general jurisdiction are not open to collateral attack, (p. 593).

4. Executors and Administrators Appointment of ClericConfir-

mation by Court Collateral Attack.

The appointment of an administrator by the clerk of a county court, the record of which shows such appointment to have been made in his office in the regular way, and which was reported to the county court at its next regular session after the appointment was made, and by it regularly confirmed, cannot be questioned in a suit brought by such administrator upon a cause of action belonging to the estate of his decedent, upon the ground that such appointment was not made at the clerk's office, but at a point m the country distant therefrom, (p. 593).

Death Actions Evidence Pecuniary Condition of Deceased. In a suit by a personal representative to recover damages for

the death of his decedent caused by the defendant's negligence,

evidence that the deceased party owned property, and of incum-

branches thereon, is uot admissible, (p. 597).

Trial Objection to Evidence Waiver by Offer of Similar Evidence.

An objection to the admission of irrelevant evidence is waived where the objecting party introduced evidence of the same character and to the same point as that to which such objection was made. (p. 597).

Appeal and Error Eevieiv Harmless Error Admission of Evidence.

A judgment will not be reversed because of the admission of improper or irrelevant evidence when it is clear that the verdict of the jury could not have been affected thereby, (p. 597). Same.

A judgment will not be reversed because of the admission of improper or irrelevant evidence tending to prove a material fact in the case, where such fact is shown by competent evidence and is not controverted by the opposing party. (p. 597). Evidence '' Ees Gestae'' Admissibility.

Whenever a statement is made by one under such circumstances as that it may be regarded as the result of an injury which has been inflicted upon him, or the result of a transaction in which he is engaged, it becomes part of the transaction itself, and if proof of the fact is material to the inquiry being made, such statement will be received in evidence as tending to establish such fact, (p. 598).

Same "Ees Gestae" Statement on Eecovering Consciousness.

The statements of an injured party who has been rendered unconscious from a blow, immediately upon regaining consciousness as to the object that hit him, are admissible in evidence as part of the res gestae where it appears that such statements are a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock from the blow, (p. 598).

Same '' Ees Gestae'' A cts.

The actions of an injured party, such as his pointing at the object which he claims struck him, are proper to be shown by a witness to whom he made statements admissible in evidence, where such actions tend to illustrate and make such statements intelligible, (p. 598).

Private Roads Construction of Pipe Line ObstructionsLiability.

One constructing a pipe line across a road or way not a public highway which to his knowledge is being used by the public as a highway, with the acquiesence of the owners of the land over which it runs, and the right of the public to use which is recognized by the party so laying said pipe line by making provision for preventing the obstruction of said road by said pipe line, is under the same obligation to construct and maintain such pipe line in a reasonably safe condition as though such road were a public highway. (p. 601).

13. Negligence Condition of Premises Use of by Invitee.

One using the premises of another by the owner's invitation has a right to assume that such premises are reasonably safe for the purp'ose for which he is invited thereon, (p. 601).

14. Same Use of Premises Injury to Invitee Liability.

A company operating for oil, having a private road from the place of its operations to the public highway, which agrees to furnish to another for use at another place an appliance owned by it, such appliance to be removed by the party desiring its use, thereby extends an invitation to such other party to come upon its premises for the purpose of removing such appliance therefrom, and if in the removal of such appliance! it be necessary to use such private road of the owner, and in the use thereof the party removing such appliance, or his servant, is injured because of the careless and negligent construction of a pipe line across said road by the owner thereof, such injured party may recover the damages sustained by reason of such injury from the party so negligently and carelessly maintaining such pipe line. (p. 601).

15. Evidence Opinion Evidence Admissibility.

The opinion of witnesses should never be received in evidence if all the facts can be ascertained and made intelligible to the jury, or if they are such as men in general are capable of comprehending and understanding. (p. 60S).

16. Same Opinion Evidence Admissibility Necessity.

When, however, it clearly appears that it is impossible to present the facts to the jury with the same force and clearness as they appeared to the observer, it is competent for the witness to give to the jury the impression which his observation made upon his mind at the time. (p. 603).

17. Neglegence Common Agency Liability.

If the concurrent negligence of two or more persons combined results in an injury to a third person he may recover from either or all. (p. 606).

18. Same.

Where two parties use a common agency in the conduct of their business they are both liable to a third party injured by the negligent or careless construction and maintenance of such agency, even though such agency is owned by only one of such parties, (p. 606).

Error to Circuit Court, Roane County.

Action by Samuel Starcher, as administrator of Oliver Norman, deceased, against South Penn Oil Company and United Fuel Gas Company. Judgment for plaintiff, and defendants bring error.

Affirmed.

A. B. Fleming, Charles Powell and Kemble White, for plaintiff in error, South Penn Oil Co.

R. G. Altizer and C. C. Douthitt, for plaintiff in error United Fuel Gas Co.

Ryan & Boggess and Pendleton, Mathews & Bell, for defendant in error.

Ritz, Judge:

In a suit by the plaintiff as administrator of the estate of Oliver Norman, deceased, to recover from the defendants South Penn Oil Company and United Fuel Gas Company damages for the death of his decedent caused by the alleged negligence of the defendants, a verdict and judgment were rendered in favor of the plaintiff, from which this writ of error is prosecuted.

It appears that there was a road running up what is called Big Run. This was not a public highway as is shown by the record, but it was a way that had been used for many years by a considerable number of people living up this run, and also by people living on the other side of the ridge. It was likewise used by the mail carriers in the performance of their duties, and it seems clear from the evidence that for many years it had been used by all who had occasion to do so without objection on the part of the owners of the property through which the same ran. The defendant South Penn Oil Company was operating for oil in this territory. The defendant United Fuel Gas Company had a gas well in the same territory, and the defendant Oil Company was procuring gas from this well to be used in its operations for oil. In order to convey the gas from the well to the place where it was needed the defendant oil company constructed a twoinch pipe line running down Big Run. across the same, and extending to the point at which it was operating. At the point where this pipe line crossed Big Run the road above referred to ran in the bed of the creek, so that when the pipe line crossed the creek it also crossed the road. In addition to the uses which were made of this pipe line by the South Penn Oil Company, the defendant United Fuel Gas Company also furnished gas through it to a number of its patrons situate along the line. This pipe line was laid on the surface of the ground, and at the place where it crossed the road running up the creek aforesaid, it appears that the bed of the creek was some two or three feet below the surface of the ground. The pipe line was not laid straight across the creek, but was conducted down the side of the bank, across the bed of the creek upon the bottom thereof, and up the bank on the other side to the natural surface of the ground, so as not to block the roadway running up the creek. It is shown that the pressure of gas in this line was ordinarily about four hundred pounds to the square inch. At the point where this pipe line crossed the creek people having occasion to use the road passed over the pipe line. It further appears that the defendant South Penn Oil Company obtained from the owners of the land a grant of the right of way for this pipe line, and that it also obtained from the owners of the land a grant of the right of way for a road up the creek, being the right to use the road above referred to. On the day of Norman's injury the Hope Natural Gas Company procured from the defendant South Penn...