76 W. Va. 747 | W. Va. | 1915
The disposition of a former writ of error in this case, revealing its character, is reported in 72 W. Va. 268. On the new trial awarded [ry that decision, facts were disclosed which give it an aspect entirely different from that presented on the former writ of error. In view of the evidence adduced on that trial, by the defendant, for the purpose of proving a right of action under the Federal Employers’ Liability Act, in exclusion of right of recovery under the state, law,, the plaintiff, with leave of the court and over the objection of the defendant, amended the first count of his declaration, so as to claim right of recovery under the new state of facts. Its effort to keep the federal statute out of the case, except for the purpose of preventing recovery under the state statute, haying failed, the defendant invoked the benefit of the limitation of the right of action prescribed by the former. The pleas setting it up were filed, a motion to direct a verdict for the defendant, based on the pleas and the evidence tending to sustain them, was overruled and a verdict for the plaintiff in the sum of $5,300.00, was returned, on which a judgment was rendered.
Waiver of right to defeat recovery under the state statute, by showing the cause of action, if any, arose under the federal statute, is asserted on the ground of failure to interpose such defense in the former trial, no intimation of its existence having been given either in the court below or in this court on the writ of error. On this theory of waiver were founded objections to the introduction of evidence tending to show plaintiff’s decedent was engaged, as an employee of the defendant, in interstate commerce, at the time of his death.
Properly regarding the Federal Employers’ Liability Act, when applicable, as exclusive of the state statute giving right of action for damages for death by wrongful act, St. Louis etc. Railway Co. v. Seale, 229 U. S. 156, Second Employers Liability Cases, 123 U. S. 1, Michigan Central Railway Co. v. Vreeland, 227 U. S. 59, the defendant, to defeat recovery on the declaration as it was when the trial began, proved that the plaintiff’s decedent was, at the time of his death, employed in the operation of a train which, although operated on an intrastate railroad, extending from the City of Elkins to the City of Charleston, was composed of a locomotive and tender and thirty three cars, nine of which cars had come from points without the state, under through contracts of carriage, for delivery in the state. Unable successfully to controvert this evidence and fearful of its effect, the plaintiff, before submission of the case to the jury, amended the first count of his declaration so as to make it conform thereto. Such right of amendment is admitted, provided the count, as amended, does not set forth a new cause of action. If it does, however, the right of amendment is denied. Hence, the assignment of error, predicated upon the action of the court, in overruling the objection to the filing of the amended declaration, raises vital inquiries: (1), whether a new cause of action can be introduced by an amendment, after an appearance by the defendant and over objection thereto; (2), if not, whether a sufficient objection was made; and, (3), whether the amendment sets forth a new cause of action.
After an appearance by the defendant, the plaintiff cannot
Every cause of action, or matter for which an action may be brought, rests upon or grows out of a legal or contractual right. A duty to which the right is correlative and a breach of the duty are its essential elements. Harvey v. Parkersburg Insurance Co., 37 W. Va. 272; Clark v. Ohio River R. Co., 39 W. Va. 732; Hudson v. Iguano Land & Mining Co., 71 W. Va. 402. Identity of causes of action, on the one hand, and differentiation thereof, on the other, are better illustrated and more clearly and accurately disclosed, it seems to us, in the application of the principles of the law of former adjudication, than any other. Rights of action very closely related and apparently identical are often held to be entirely separate and distinct, in the legal sense of the terms. Cromwell v. County of Sac, 94 U. S. 351; De Sollar v. Tanscome, 158 U. S. 216; Russell v. Place, 94 U. S. 606; Coville v. Gilman, 13 W. Va. 314; Hudson v. Iguano Land & Mining Co., 71 W. Va. 402; Pomeroy National Bank v. Huntington National Bank, 72 W. Va. 534. More than one right of action may arise between the same persons, respecting one and the same thing or transaction. In a suit to compel specific performance of a contract of sale of land, circumstances entirely aside from the validity of the contract, may constrain a court of equity to refuse specific performance of it. Thereafter ,a court of law may entertain an action on it for damages for nonperformance. Here the same contract and the same parties
Every merely partible or separable thing, however, does not constitute a separate right of action. In Clark v. O. R. R. Co., 39 W. Va. 732, Judge BRAnnon illustrated this proposition, saying: “There is a farm, through which a railroad right of way is condemned. The company’s legal duty is to put in two cattle-guards. That is the whole duty to the owner as to this tract: If it puts in neither, that duty is broken; so if it puts in only one. This might seem to imply that the failure to put 'in each cattle-guard was in itself alone a cause of action, but I think not. The owner of this farm sues the company for breach of this duty. The duty included two cattle-guards. He specifies in his declaration, however, only the failure to build one, but he concludes later that the duty covers two. Can he not amend his declaration, and specify a second breach in the failure to make a cattle-guard at another place? He does not introduce a new and different substantive cause of action, as he does not impute a new and different duty, but still relying upon the same duty as giving birth to his right, he but calls in another breach of that duty. ’ ’ The right to amend, under such circumstances, was' upheld on the ground of singleness of the duty imposed by one law, the only law applicable to the transaction. The state statute giving a right of action for damages for death by wrongful act and the Federal Employers’ Liability Act, giving a right of action for the same thing, each impliedly im
But for the court’s judicial knowledge of the statute, it would have to be pleaded as the foundation of the action. If the duty violated or broken were contractual in its nature, the contract would certainly have to be pleaded, and there could be no recovery upon proof of a contract different from
That the presence of interstate cars, in the train on which the decedent was killed, made it an interstate train, is admitted. Besides, principles declared in St. L., San Francisco & Tecas Ry. Co. v Seale, cited, and Pederson v. Del., Lack. & W. R. Co., 229 U. S. 146, affirm the proposition and put it beyond question. Although the decedent was on that train as an employee of the defendant, at the time of the explosion which caused his death, his employment in interstate commerce is denied, because he was only a student fireman and,
In our opinion, the amended count of the declaration stated a new cause of action and the court should have refused leave to file it.
Enough has been said of the state of the evidence to- show that the verdict could not stand on it, if the error noted could be regarded as harmless in the case of one based on sufficient evidence. Taken as a whole, it proves a ease not pleaded in the original declaration, and, as the amended declaration must be struck out, for reasons stated, this evidence has no place in the case except to show lack of right of recovery in the plaintiff, upon the declaration he chose to file and to which he is now held by a firmly established rule of practice.
Other assignments of error need not be noticed, since practically all of them relate to matters and issues brought into the proceeding by the amended declaration. Elimination thereof completely alters the case and leaves it as it was when it was analyzed and defined for the purposes of a new trial, on the former writ of error.
The judgment will be reversed, the verdict set aside, the objection to the filing of the amended declaration sustained, that declaration struck from the record and the case remanded for a new trial.
Reversed and remanded.