Town Of Clendenin Ex Rel. Thornton Fields v. Ledsome, CC 712

• Decision Date: 10 December 1946
• Docket Number: CC 712
• Citation: 129 W.Va. 388
• Court: West Virginia Supreme Court
• Parties: Town Of Clendenin ex rel. Thornton Fields v. Amos L. Ledsome, Policeman, etc., et al. 1946.

129 W.Va. 388

Town Of Clendenin ex rel. Thornton Fields

v.Amos L. Ledsome, Policeman, etc., et al.

CC 712

Supreme Court of Appeals of West Virginia.

Submitted October 1, 1946.

Decided December 10, 1946.

Limitation of Actions

In order that the provisions of Code, 55-2-18, toll the running of the statute of limitations applicable to an action at law, it is necessary that the parties in interest in the pending action to which the statute of limitations would otherwise apply, be the same as those in the prior action involuntarily abated or dismissed.

Certified from Circuit Court of Kanawha County.

Action by the Town of Clendenin on the relation of Thornton Fields against Amos L. Ledsome, policeman, etc., and another, for personal injuries. The Court of Common Pleas having entered an order overruling a demurrer to plaintiff's declaration certified its decision of the questions thus raised to the Circuit Court, and Circuit Court, sustaining the ruling of Court of Common Pleas, in turn certified the questions.

Reversed and remanded.

J. Raymond Gordon, for plaintiff.

Campbell, McClintic & James, Charles C. Wise and Stanley E. Dadisman, for defendants.

Kenna, President:

This case certified was brought in the Court of Common Pleas of Kanawha County, that court having entered an order overruling a demurrer to the plaintiff's declaration and certifying its decision of the questions thus raised to the Circuit Court of Kanawha County, which court sustained the rulings of the Court of Common Pleas and in turn certified the questions for decision here.

The declaration in covenant alleges that the defendant, Amos L. Ledsome, on September 16, 1943, was one of two policemen employed by The Town of Clendenin, Kanawha County, and that the American Surety Company of New York was surety on his official bond for the faithful discharge of his duties in the penalty of §3500.-00; that the plaintiff, Thornton Fields, on that day was taken into custody by other officers and brought to the city jail of which Ledsome had charge by reason of an established custom pursuant to which the policeman on duty carried the keys to the jail and exercised supervision of it; that there was no commitment nor warrant for the plaintiff's arrest but that he was accused of having been intoxicated in a public place; that he was placed in the jail alone on a concrete floor with neither a chair nor a cot and was locked in by the defendant, Ledsome; that the defendant negligently and unlawfully operated the jail with the result that the clothing of the plaintiff "was set on fire" causing him to be severely burned and suffer acutely for about two hours without aid, so that he was hospitalized for nine months thereafter.

The declaration further alleges that the plaintiff on the 17th day of August, 1944, being badly advised, instituted an action in the Court of Common Pleas against the Town of Clendenin for $25,000.00, and that on the 17th day of October, 1944, the action was dismissed on demurrer sustained. For the purpose of raising the question of the statute of limitations on demurrer the defendant craved oyer of the writ, thereby showing that this action was instituted on the 24th day of April, 1945.

The defendant filed a special plea alleging in effect that the operation of the public jail in the Town of Clendenin is the exercise of a governmental function with which the mayor, recorder and city council of that town are charged by its charter and that no duties concerning the exercise of that function have been delegated to, or imposed upon, the defendant Ledsome. There seems to have been no demurrer nor replication to this special plea, but with that we are not now concerned since all of the certified questions arise upon demurrer to the declaration overruled. They are:

" (1) No cause of action is stated in said declaration against either of defendants because:

"(a) No breach of covenant is alleged in such declaration;

"(b) The maintenance, operation and control of the jail of the Town of Clendenin is exclusively vested in the Mayor, Recorder and Common Council of such Town, in as much as it is a governmental funciton and defendant Amos L. Ledsome as a matter of law had no duty of any kind or character respecting such jail;

" (c) Assuming that defendant Ledsome was acting as de facto jailor for the Town of Clendenin, as a matter of law he was performing a governmental function and under a legal duty to receive plaintiff as a prisoner, particularly since the declaration does not charge that defendant Ledsome had any notice of any alleged improper or illegal arrest and detention of plaintiff;

"(d) Defendant Ledsome had a legal right to detain for a reasonable period of time the plaintiff at the request of another governmental agency without process; and

"(e) Such declaration wholly...