Barnum v. Baltimore & Ohio Railroad

5 W. Va. 10 | W. Va. | 1871

BerKshire, P.

The only questions involved in this case atise on the demurrer to the declaration. The action is trespass vi et armis for the recovery of the secondary or consequential damages, alleged to have been sustained by the plaintiff, by reason of his having been forcibly ejected from a certain car belonging to the defendant, by its agent acting under its advice and order, said agent being then and there the conductor of the train and car from which the plaintiff was so ejected and expelled. It was insisted by the counsel for the appellee, that the proper remedy for the grievance complained of, was an action of trespass on the case, and that trespass vi et armis would not lie upon the case made by the declaration. By section 7 of chapter 148 of the Code of 1860, p. 635,' it is provided that “ in any case in which an action of trespass will lie, an action of trespass on the case may also be maintained.” But the converse is not provided, and the action of tresjiass, therefore, as to the cases in which it will lie, remains as at common law. And it is clear that at the common law, such action could be maintained only when the injury complained of was the direct and immediate result of the act of the defendant complained of. But it never lay for secondary and remote damages, the remedy in such cases (before our statute) being an action of trespass on the case. I am aware of no civil remedy at common law, for a direct and willful trespass and injury done with force by the defendant to the person of another, except an action of trespass for an assault and battery. An action of trespass on the case will now lie under our statute, and such action would also embrace the consequential as well as the immediate damages resulting from the act. In this case, however, the action is not for the assault and battery, or for any immediate injury done to the person of the plaintiff; but it is trespass vi et armis for the secondary and consequential damages alleged to have ultimately ensued from the original trespass in ejecting the plaintiff from the defendant’s car. Authorities were cited to show that an action for an assault and battery committed by its agents would lie against a corporation. The authorities as to this question are conflicting somewhat, and it is unnecessary to decide it, as no such action in this instance has been instituted. The declaration shows a case, therefore, in which trespass at common law would not lie, and for this reason the demurrer was properly sustained. It was further insisted that the declaration fails to show any case upon Avhich the plaintiff is entitled to recover. I think this objection must be sustained also. The declaration avers it is true, that the plaintiff was wrongfully ejected and excluded from a certain car belonging to the defendant, by an agent of the latter. But nothing is alleged to show the plaintiff’s right to be in and upon the car, or that such ejection and expulsion therefrom was in fact improper or illegal. The car being the property of the defendant, in possession of its agent at the time of the alleged trespass, and the plaintiff having no unconditional right to be in and upon it, or to enjoy it, for aught that is averred in the declaration, he was there without rightful authority, and consequently his expulsion was not necessarily wrongful. It is not enough for the plaintiff to aver generally that he was wrongfully put off and excluded from the car, but he must set forth in the declaration sufficient to show such wrongful expulsion. This he has clearly failed to- do, and the declaration in this respect, therefore, is fatally defective. The judgment must be affirmed with cost and damages.

The remaining members of the court concurred.

Judgment affirmed.