127 Va. 586 | Va. | 1920
■ • The material questions raised by the. assignments of error will be disposed of in their order as stated below.
1. Is the plaintiff’s action barred under the statute of limitations requiring it to be instituted within one year after the injury complained of occurred?
In our opinion this question must be answered in the negative.
■ [1, 2] The injury complained of occurred in Tazewell county on the 6th day of September, 1917. The original writ of summons commencing the action was issued by the clerk in August, 1918, and was made returnable to the first October.rules, 1918. At its return day this process was in fact returned by the officer as “executed,” per the endorsement of his return thereon “on the 14th day of August, 1918, in Tazewell county, by delivering a true copy of the within summons to A. Rowen in person, who is superintendent of the within defendant corporation in the county of Tazewell, in which county the said A. Rowen resides.” This return of such process as “executed” was on its face manifestly defective, under the statute in such case made ■and provided, and was subject to be quashed for that reason. On the 14th day of November, the plaintiff sued out and there was issued by. the clerk a second writ of summons,
The statute on the subject of alias and pluries process, as it stood at the time this case arose, is contained in Code 1887, section 3221, and is as follows:
“If at the return day of any process, it be not returned executed, an alias, or other process, may be issued, without waiting (when the first process is returnable to a term) for the subsequent process to be awarded at rules; and where, for want of a return of the first process against a defendant, subsequent process is issued, if the former was executed the officer shall not execute' the latter, but shall return the former, if it be in his possession, and if it be not, shall return the latter with an endorsement of the execution of the former, and the proceedings thereupon shall be as if the first had been duly executed.”
The position of the company is that under this statute the second process cannot be regarded as an alias process, because it was not issued at the return day of the original process, but must be regarded as an original process commencing a new action after the expiration of the one year-from the date of injury; that the statute requires all alias process to be issued “at the return day” of the original process; and that otherwise there is a hiatus in the action which operates as a discontinuance of it; and Burks’ Pl. & Pr., pp. 290-291; 20 Encl. Pl. & Pr., p. 1179; 32 Cyc. 446; United States v. Parker, 2 Dall. 373, 1 L. Ed. 421, 423; Col-
There is thus presented a very interesting question and one not free from difficulty. But, confining our holding to the precise facts of the case before us, which are, in substance, to the effect that there was no defect in the original process itself; that at its return day it was returned “executed” by the officer, although in a defective manner, as aforesaid; and that the defect was only in the service and return of the writ; we are of opinion that the case is ruled by the decision of this court in Virginia Fire & Marine Ins. Co v. Vaughan, 88 Va. 832, 14 S. E. 754, that the original writ so returned sufficed to keep pending the action commenced thereby, without any hiatus, until the return thereon was quashed by the court, and that the second writ having issued prior to the quashing of the return on the original writ, and having been duly served and returned, there was no hiatus in the action which could operate as -a discontinuance thereof.
The case of Va. Fire & Marine Ins. Co. v. Vaughan, supra, has been of such long standing in its holding, undisturbed prior to the Code of 1919, that it has established a rule of practice which has been doubtless followed by the bar of the State prior to such Code. Hence, we feel that we should not hold ineffective action which has been taken in accordance with that rule of procedure.
In the case just mentioned the action was on a fire insurance policy, which stipulated that it must be commenced “within six months next succeeding the date of the fire or damage.” The original writ of summons was issued within that period and was made returnable to rules. It was returned “executed” on an agent of the defendant company on a certain date, but that date was less than ten days before the return day. Therefore, the service was bad, not
“1. There is no error in the order of the circuit court remanding the case to rules to be properly matured. The defect was not in the writ itself, but in the service and return, and that was no ground for quashing the writ. The recent case of R. & D. R. Co. v. Rudd, 88 Va. p. 648, 14 S. E. 361, is a sufficient authority upon this point.
“2. This also disposes of the question whether the action was commenced within the time stipulated for in the policy; that is, ‘within six months next succeding the date of the fire or damage.’ The commencement of the action' was the issuance, not of the alias, but of the original summons, and that was within the stipulated period.”
From what is said on the first point dealt with in the case just cited, it will also be seen that the court draws*a proper distinction between cases where the original writ is valid, but the service is invalid, as is true of the original writ in the case before us; and cases where the original writ itself is void, as was true in the case of Noell v. Noell, 93 Va. 433, 25 S. E. 242, cited in the reply brief for the company.
We are of opinion that this question must be answered in the negative.
“The court instructs the jury that if they believe from the evidence that the defendant company was running the train of empty mine cars through the main entry with the trip motor at the time the plaintiff, William M. Bates, was injured, without providing a proper system of signals therefor, or without having a conspicious light on the front end of said train, then the defendant was guilty of negligence, and the plaintiff is entitled to recover, provided the said negligence was the proximate cause of the plaintiff’s injury, and the defendant was not guilty of contributory negligence ; and, if the defendant relies upon contributory negligence as a defense, the burden is upon the defendant to prove by a preponderance of the evidence that the plaintiff was guilty of contributory negligence.”
The question just stated must be answered in the negative.
The objection urged against this instruction by the company is that the statute says that it shall be the duty of the mine foreman to provide for the carrying of the light on the front end of the train. The instruction tells the jury that the defendant was liable if the light was not there. The difference between the instruction and the statute is the difference between the absolute duty of having the light there and the duty of providing for its being there.
Abstractly, the objection is well taken. The instruction should have contained the qualifying word “provide,” which is in the statute, in connection with the language on the subject of the light, so as to have read “without providing for a conspicuous light,” etc. But such error was immaterial and harmless in the instant case, since there is no evidence that the company provided for a light on the front end of the train in the sense which we have above held the statute requires.
We are of opinion that this question also must be answered in the negative.
This question was heretofore an open one in this court, it was left undecided in Virginia Iron, Coal and Coke Co. v. Asbury’s Adm’r, 117 Va. 683, 86 S. E. 148. There is a conflict of authority on the subject elsewhere. See Narramore v. Cleveland, etc., Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 268; Denver, etc., Ry. Co. v. Norgate, 141 Fed. 247, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981, 5 Ann. Cas. 448; Knisely v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367. The same statute and the precise question which we have under consideration was before the United States Circuit Court of Appeals in the case of Pocahontas Consolidated Collieries Co. v. Johnson, 244 Fed. 368, 156 C. C. A. 654.
In that case Judge Knapp delivered an able and forceful dissenting opinion; but the majority opinion, delivered by Judge Woods, equally able and more convincing to our minds, held that the doctrine of assumption of risk does not apply to the breach of such a statutory duty as that in question. We think that is the sound and correct conclusion, both on principle and upon authority. See the case last mentioned and the authorities therein cited.
riO] 5. Did the court below err in refusing to give either of two instructions, Nos. 7 and 8, asked for by the company, which were the same in substance and would have instructed the jury that if they should “believe from the evidence that it was the duty of the plaintiff to use reasonable care to protect himself from the main heading motor, flagging or listening for the same, while he was on the main entry with his gathering motor, and that the plaintiff failed to use reasonable care to protect himself from said main heading motor, and that such failure on the part of the plaintiff contributed to the injury complained of, then you are instructed that the plaintiff was guilty of contributory negligence and cannot recover?”
This question must be answered in the negative.
The court had already given' three instructions at. the instance of the plaintiff, Nos. 1, 2 and 3, and four instructions at the instance of the company, Nos. 1, 2, 3 and 5, in which the question of contributory negligence was submitted to the jury.
Instruction No. 1, given at the request of the company, was as follows: “The court instructs the jury that the defendant company was not the grantor of the safety of the plaintiff, and that the plaintiff was under as great obligation to provide for his own safety from such dangers as were known to him, or were discernible to a person of his age and capacity by the exercise of ordinary care on his part, as the defendant was to provide for him, and if the jury believe from the evidence that the plaintiff might have
We are of opinion that the jury were sufficiently instructed on the subject of contributory negligence, and that the giving of instructions 7 or 8,- asked for by the company, would have been a needless multiplication of instructions on that subject.
We think his testimony was plainly admissible under the rules applicable to rebuttal evidence. If a witness, under such circumstances, makes a change in his testimony, his credibility is for the jury.
There are some other questions raised by the assignments of error, but as they are not in any way novel, it is deemed sufficient to say of them that we have carefully considered all of them and find no merit in any of them.
The judgment under review will be affirmed.
Affirmed.