Baltimore & Ohio R. R. v. Gettle , 3 W. Va. 376 ( 1869 )

BERKSHIRE J.

The first question for our consideration arises on the demurrer to the declaration. The action is trespass on the case, and founded on the act of the 9th of November, 1863, p. 113, for damages for the killing of plaintiff’s intestate, Frederick Gettle.

The objection to the declaration is, that it fails properly to aver that the decedent had a widow or next of kin, for whose benefit alone it is claimed the action could be maintained. The second section oí the act provides that the action shall be brought by and in the name of the personal representative of the decedent, and that the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person, and that the jury may give such damages (not exceeding 5,000 dollars) as they shall deem fair and just with reference to the pecuniary injury resulting from such death to the wife and next of kin.

It is very manifest, therefore, that the widow and next of kin constitute the very pith and essence of this action, and that if there be none such the action will not lie. And this being the case, it follows, as it seems to me, that it should be distinctly and positively averred in the declaration that the decedent had, in fact, a widow or next of kin, or both, (as the case might be), and I think that, in order to enable the defendant to meet this question fairly, correct pleading would require that such widow and next of kin should be accurately set forth and designated by name in the declaration, and that the damages claimed were for the aid of and sustained by such widow and' next of kin. There is no such positive and sufficient averment of a widow or next of kin found in the declaration in this case, and I think itw’as bad for this omission, and that the demurrer to it ought to have been sustained. 1 Wash., 135; 1 Call, 71; 3 Munf., 255; Lucas vs. N. Y. Central Railroad Company, 21 Barbour, 245.

It appears that immediately upon the overruling of the demurrer to the declaration, the cause was tried, and the jury sworn to try the issues joined, &c. But it does not appear from the record that there was any plea filed to this, the amended declaration,.nor any issue raised under it, and' was therefore error to swear the jury to try the issue joined when there is no such issue or any issue in the cause to be tried by a jury. 2 Call, 315; 1 H. & M., 161; 4 Rand., 172; 9 Leigh, 422.

A further error complained of is the overruling of the defendant’s objection to the evidence of Theodore Buser, a witness introduced on behalf of the plaintiff. This evi-denee related to the maintenance of the plaintiff, Elizabeth Gettle, furnished to her by her intestate in his life time, as well as to what it would cost to support her since his death. It is clear that the testimony could only be admissible on the ground that she was the widow, or one, or all of the next of kin of the decedent. From the record it appears that the deceased was the son of, lived with and supported the plaintiff, and that he was only 23 years of age at the time of his death-, and was unmarried. From this I think it might be fairly implied that the plaintiff was in fact one of the next of kin of her intestate, and, therefore, the testimony was properly admitted.

The remaining error assigned is to the overruling of the defendants’ motion to set aside the verdict, as being contrary to evidence, and grant it a new trial.

It seems to me the court- erred in not sustaining the mo|tion.

I am, therefore, of opinion that the judgment should be Ireversed, with costs to the plaintiff in error here, and the ■cause remanded to the circuit court for further proceedings, Faccording to the principles indicated therein, when, if requested, the plaintiff have leave to file an amended decla- [ ration.

The other judges concurred.

Judgjient reversed.