Webb v. Sessler

• Decision Date: 12 February 1951
• Docket Number: No. 10280,10280
• Citation: 135 W.Va. 341,63 S.E.2d 65
• Court: West Virginia Supreme Court
• Parties: WEBB, v. SESSLER et al.

Page 65

63 S.E.2d 65

135 W.Va. 341

WEBB, v. SESSLER et al.

No. 10280.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1950.

Decided Dec. 12, 1950.

Rehearing Denied Feb. 12, 1951.

Syllabus by the Court.

1. In this jurisdiction there can be no recovery for negligence unless the negligence charged was the proximate cause of the alleged injury or death.

2. The proximate cause of an injury is the last negligent act contributing thereto, without which such injury would not have resulted.

3. 'Proximate cause' must be understood to be that cause which in actual sequence, unbroken by any independent cause, produced the wrong complained of, without which the wrong would not have occurred.

4. In this jurisdiction there is a clear distinction between the proximate cause of an injury and the condition or occasion of the injury.

Dewey B. Jones, J. Malcolm Orth, Charleston, James Henderson, Beckley, W. Hayes Pettry, Charleston, for plaintiff in error.

Fletcher W. Mann, Beckley, H. E. Dillon, Jr., Fayetteville, for defendants in error.

RILEY, Judge.

Kermit Webb, administrator of the Estate of Citie Louise Webb, deceased, instituted this action at law in the Circuit Court of Raleigh County to recover damages for decedent's alleged wrongful death, against Robert Sessler and Rebecca Sessler, executrix of the Estate of Herbert L. Sessler, deceased, a partnership, doing business as Beckley-Mt. Hope Airport; Howard Keatley, doing business as Beckley Flying School; Paul Neal, airport manager; The New River Company, a corporation, the owner of the ground upon which the airport is located; and Edward Ray Lilly. All of the defendants, except Lilly, filed separate demurrers to each of the two counts of the declaration. The Circuit Court of Raleigh County, having sustained the demurrers, and plaintiff not desiring to amend, dismissed the demurring defendants. To this action of the court, plaintiff prosecutes this writ of error.

Because the declaration under appraisement covers forty-six pages of the printed record, and its allegations are in great detail and somewhat repetitious, it seems advisable, for the purpose of brevity, to state the matters contained in the declaration to a large extent in narrative form.

The airport owned by defendant, The New River Company, managed by the defendant, Paul Neal, leased to the defendants, Robert Sessler and Rebecca Sessler, executrix of the Estate of Herbert L. Sessler, deceased, upon which the defendant, Howard Keatley, at the time decedent received her fatal injuries, was operating a flying school, lies to the northeast of the intersection of State Route No. 8 and United States Route No. 21. Its southern and western boundaries lie along the highways and about twenty-five feet therefrom. United States Route No. 21 is on the west side of the airport, and runs parallel therewith for a long distance approximately the length thereof, and State Route No. 8 runs parallel with the entire width of the airport on the southerly side thereof.

On April 10, 1949, the day on which plaintiff's decedent, Citie Louise Webb was injured, she was sitting in an automobile parked on the southern berm of State Route No. 8, at a time when the defendant, Edward Ray Lilly, who owned a Consolidated-Vultee Model BT-13 airplane, which he kept and maintained at the airport, had taken off from the airport in a southerly direction and across State Route No. 8. After clearing the flying field, as well as the highway, and 'before he had attained a safe altitude [he] negligently, carelessly, unlawfully and wrongfully proceeded to bank back his said aircraft and attempted to land on the same airfield from which he had ascended.'; and said defendant Lilly 'negligently, carelessly, unlawfully and wrongfully in attempting to land his said aircraft at the time and place aforesaid on said airfield, descended the said aircraft with its wings spread vertical and the landing gear out of line with the airfield and the surface of the earth; and the defendant Edward Ray Lilly negligently, carelessly, unlawfully and wrongfuly and wantonly at the same time and place flew his said airplane and attempted to land his airplane upon an airfield which was dangerous and hazardous because of the close proximity of the airfield to the highways, in violation of C. A. A. Regulation and Drawing No. 793, * * *.' It is further alleged as to Lilly's negligence that at the time plaintiff's decedent was seated in the automobile and using reasonable and ordinary care for her own safety, Lilly's airplane 'was negligently, carelessly, unlawfully, wrongfully and wantonly flown along, over and above said State Route 8, a public highway, * * * and while the said aircraft was being flown in a northerly direction at or near the Beckley-Mt. Hope Airport, as aforesaid, over and above said public highway, as aforesaid, the said defendant Edward Ray Lilly's said aircraft at the same time and place was negligently, carelessly, unlawfully, wrongfully and wantonly flown and operated over and across said highway State Route No. 8, as aforesaid, at a low and unsafe altitude or height, and with the wings of his said airplane in a vertical position and the landing gear of said airplane was not in line with the said airfield or the earth's surface and said airplane was not in proper position for landing, and about the time the defendant Edward Ray Lilly's said aircraft neared or approached the car in which plaintiff's decedent was sitting, as aforesaid, the defendant's said airplane was negligently, carelessly, unlawfully, wrongfully, and wantonly flown and driven in the manner aforesaid toward the car in which plaintiff's decedent was sitting, * * *'; and said 'aircraft was driven with great force and violence upon and against the car or automobile in which plaintiff's decedent was sitting, whereby and by reason whereof the car in which plaintiff's decedent was sitting was struck a very violent and severe blow, and also by reason thereof and as a direct and proximate result of the negligence, carelessness and wantonness of the defendant Edward Ray Lilly, as heretofore alleged, the plaintiff's decedent was struck a very violent and severe blow and was knocked against the car in which she was sitting and was severely injured, crippled and maimed and as a result of said injuries she immediately died.'

Also as to the alleged negligence of the defendant Lilly, the declaration further alleges that said defendant 'negligently, carelessly, unlawfully and wrongfully made major repairs on his said aircraft without a license to do so as authorized by law and in violation of Civil Aeronautic Regulations 18.3 and 18.31, and also flew said aircraft without having said aircraft inspected and approved by a duly authorized representative of the Civil Aeronautics Administration, in violation of Civil Aeronautics Regulation 18.51, and also the defendant Edward Ray Lilly negligently, carelessly, unlawfully, wrongfully and wantonly flew said aircraft at the time and place aforesaid when said aircraft was not airworthy; * * *.' The foregoing are the main allegations bearing on defendant Lilly's alleged negligence contained in both counts of the declaration.

These allegations are stated in extenso because they bear directly on the vice contained in this declaration, that is, the failure of the declaration to allege that the death of plaintiff's decedent proximately resulted from the acts of negligence alleged as to the demurring defendants.

The two counts of the declaration contain substantially the same language, except that the second count alleges that the airfield is a nuisance.

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