Norfolk & Western R. v. Ampey

25 S.E. 226, 93 Va. 108, 1896 Va. LEXIS 57
CourtSupreme Court of Virginia
DecidedApril 23, 1896
StatusPublished
Cited by54 cases

This text of 25 S.E. 226 (Norfolk & Western R. v. Ampey) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk & Western R. v. Ampey, 25 S.E. 226, 93 Va. 108, 1896 Va. LEXIS 57 (Va. 1896).

Opinion

Riely, J.,

delivered the opinion of the court.

The declaration contains three counts. The defendant demurred to the whole declaration and also to each count thereof, in which demurrers the plaintiff joined. The Corporation Court overruled the demurrers; and this action of the ■court constitutes the first assignment of error.

The main objection to the declaration relates to the first ■count; and the foundation of the objection is that this count alleges three distinct grounds of negligence as the cause of the injury sustained by the plaintiff, either of which would of itself, independently of the others, constitute a ■sufficient ground for the action. In other words, the claim is that the count is bad for duplicity. The grounds so stated are, the negligence of the defendant in failing to ■exercise due care in selecting competent servants, in failing to provide a sufficient number of train hands, and in failing [122]*122to supply and maintain suitable and safe machinery and instrumentalities for the conduct of the business of the defendant. They are conjunctively alleged as concurrent causes which, co-operating together, produced the injury. It is very questionable whether this constitutes duplicity. It is stated by eminent text-writers on the subject of pleading that no matters, however multifarious, will operate to make a pleading double that together, constitute but one connected proposition, or entire point. Stephen on Plead. 232-3, 263 ; 4 Minor’s Insts., Pt. 2, p. 937, and Va. F. & M. I. Co. v. Saunders, 86 Va. 969. But even if this count was obnoxious to the charge of duplicity, the fault could not be taken advantage of on a general demurrer. The objection for duplicity relates to matter of form only, and does not go-to the substance of the pleading. Being an objection to the form and not to the substance of the declaration, it could only be availed of, even at common law, with all of its rigid rules of pleading, by special demurrer. The party demurring was required to lay his finger upon the very point. Chitty on Pl. 655, 662; 4 Minor’s Institutes, Pt. 2, 939; 5 Rob. Pr. 305; Smith v. Clench, 2 Ad. & Ellis, N. S. 836; Fairfax v. Lewis’s Adm’r, 11 Leigh 243; Kennaird v. Jones, 9. Gratt. 189; Cunningham v. Smith, 10 Gratt. 257; Smith’s Adm’r v. Lloyd’s Ex., 16 Gratt. 310, 313; Grayson v. Buchanan, 88 Va. 251; and King v. Howard, 1 Cush. 141.

Where special demurrers have been abolished, duplicity in pleading cannot now be reached by a demurrer. 5 Rob. Pr. 305; 3 Id. 509; King v. Howard, 1 Cush. 141; Coyle v. B. & O. R. R. Co., 11 W. Va. 107; and Sweeney v. Baker, 13 W. Va. 200.

Section 3272 of the Code is as follows:

“ On a demurrer (unless it be to a plea in abatement), the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleadings or not, unless there be omitted something so essential to the action or defence, that judgment, according to the law and the very right of the cause, cannot be given. -***-* *«

[123]*123This language was incorporated into the Code at the revisal of 1849 upon the suggestion of the Revisors, who, in reporting it to the Legislature, appended the following note:

“ This section 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 as causes of demurrer, and which, if so alleged, were available; its effect is to abolish special demurrers.” Report of Revisors, 849, and 3 Rob. Pr. 509.

It was held by this court in Smith’s Adm’r v. Lloyd’s Ex., supra, 310 and 313, that the effect of this statute was to abolish special demurrers. Consequently, mere duplicity in a count in a declaration is no longer with us a good ground of demurrer.

Neither in the petition for the writ of error, nor in the brief of counsel for the plaintiff in error, is any ground relied on in support of the demurrer to the second count. An inspection of it discloses no defect, and none exists.

The objection to the third count is that it does not set forth a cause of action in the city of Petersburg. Even if the allegation of place were necessary, the objection is not well founded, for it is expressly averred at the beginning of the count that it was at the city of Petersburg that the coupling, in effecting which the injury was alleged to have been sustained, was required to be made. But this is a transitory action, and it was unnecessary to set forth in the declaration the place at which the act which caused the injury was done. Code, sec. 3243; 4 Minor’s Institutes, Pt. 1, 574-575,590; Id., Pt. 2, 955-56; and 3 Rob. Pr,, (New) 503-505. If the objection was aimed at the jurisdiction of the court, then this was the province of a plea in abatement to the jurisdiction, and not of a demurrer. Code, sec. 3260. It is unnecessary to aver in the declaration that the cause of action arose, or that the matter is within the jurisdiction of the court. Sec. 3244.

The next assignment of error relates to the refusal of the court to exclude from the consideration of the jury certain [124]*124parts of the testimony given by the plaintiff himself upon the trial.

It is sought to raise the question upon the bill of exceptions taken to the refusal of the court to set aside the verdict and award a new trial, which sets forth all of the evidence given upon the trial, together with the objections to the evidence and rulings of the court as they were noted during the progress of the trial, and much other matter. It is simply a stenographic report of all that transpired, signed by the judge, and fails to comply, so far as the alleged errors under consideration are concerned, with the familiar and well-established practice in respect to bills of exceptions. Where a ruling of the trial court is relied on as erroneous, and it is intended to make it, if not remedied, the' basis of an application to an appellate court for a writ of error, particularly where it relates to the admission or exclusion of evidence, or to an instruction, it should be directly brought to the attention of the trial court, and if not corrected by appropriate action, it should then be specified m a proper bill of exceptions, unincumbered by irrelevant matter, and signed by the judge of the court. And while it is permissible to embrace in the same bill more than one exception, it tends to' produce confusion, and the practice is not to be commended; but, if adopted, the bill of exceptions should, as in the case of a single exception, specifically and definitely set forth the allegation of error and so much of the evidence as is necessary to render clear the propriety or impropriety of the rulings of the court which were excepted to. Where a bill of exceptions is not taken in accordance with the established practice, the objections made to rulings of the court in respect to the admission or exclusion of evidence, although noted at the time, are to be treated by the appellate tribunal as waived or abandoned. In the case of N. &. W. R. Co. v. Shott, 92 Va 34, Judge Harrison, in delivering the opinion of the court, said:

[125]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McNeir v. Greer-Hale Chinchilla Ranch
74 S.E.2d 165 (Supreme Court of Virginia, 1953)
Aronovitch v. Ayres
193 S.E. 524 (Supreme Court of Virginia, 1937)
Roy v. Oregon Short Line R. R. Co.
42 P.2d 476 (Idaho Supreme Court, 1934)
James v. Powell
152 S.E. 539 (Supreme Court of Virginia, 1930)
Colonna Shipyard v. Dunn
151 Va. 740 (Supreme Court of Virginia, 1928)
Chesapeake & Ohio Railway Co. v. Arrington
101 S.E. 415 (Supreme Court of Virginia, 1919)
Parrish & Co. v. Pulley
101 S.E. 236 (Supreme Court of Virginia, 1919)
Moore v. Norfolk & Western Railway Co.
98 S.E. 635 (Supreme Court of Virginia, 1919)
Virginia Portland Cement Co. v. Swisher's Administrator
94 S.E. 159 (Supreme Court of Virginia, 1917)
Bowen's v. Bowen
94 S.E. 166 (Supreme Court of Virginia, 1917)
Lynchburg Foundry Co. v. Dalton
93 S.E. 587 (Court of Appeals of Virginia, 1917)
Millboro Lumber Co. v. Donald
90 S.E. 618 (Supreme Court of Virginia, 1916)
Chesapeake & Ohio Railway v. Meadows
89 S.E. 244 (Supreme Court of Virginia, 1916)
Carpenter v. Smithey
88 S.E. 321 (Supreme Court of Virginia, 1916)
Scott's v. Chesterman
85 S.E. 502 (Supreme Court of Virginia, 1915)
Wyldes ex rel. McLaughlin v. Patterson
153 N.W. 630 (North Dakota Supreme Court, 1915)
Chesapeake & Ohio Railway Co. v. Newton's Administrator
85 S.E. 461 (Supreme Court of Virginia, 1915)
United States Leather Co. v. Showalter
74 S.E. 400 (Supreme Court of Virginia, 1912)
Southern Railway Co. v. Childrey
74 S.E. 221 (Supreme Court of Virginia, 1912)
Lanford v. Virginia Air Line Railway Co.
73 S.E. 566 (Supreme Court of Virginia, 1912)

Cite This Page — Counsel Stack

Bluebook (online)
25 S.E. 226, 93 Va. 108, 1896 Va. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-western-r-v-ampey-va-1896.