Ratcliffe v. McDonald's Administrator

Citations

• 123 Va. 781
• 97 S.E. 307
• 1918 Va. LEXIS 66

Syllabus

<p>1. Demurrer—Notice of Motion—In the instant case, a motion for judgment to recover damages for the death of plaintiff’s intestate, there was no motion to quash the notice of motion, but counsel for defendants merely stated in the grounds of defense that the notice “does not in law sufficiently state a case; hence subject to demurrer.” To say that a pleading is subject to demurrer, even in a proceeding by motion, cannot be said to constitute a demurrer to such pleading.</p> <p>2. Pleading—Mo/rried Women—Christian Name.—In a proceeding by motion for judgment to recover damages for the negligent killing of plaintiff’s intestate against a husband and wife, the wife should be impleaded by her own baptismal, or Christian, name, and not by the initial letters of her husband’s name; the former is her legal designation.</p> <p>3. Death by Wrongful Act—Contributory Negligence—Parent and Child.—In the instant case a proceeding by motion to recover damages for the negligent killing of plaintiff’s intestate, a child about four years of age, there was evidence tending to show that the negligence of plaintiff proximately contributed to the accident, and under the statute of distributions the recovery would inure to his benefit. •</p> <p>Held; That it is settled law.in this jurisdiction that in such a case plaintiff could not recover.</p> <p>4. Instructions—Directing Verdict—Instructions Not Covering Whole Case.—In a proceeding by motion against husband and wife to recover for the negligent death of plaintiff’s intestate, an instruction concluded with the direction that the jury should find for the plaintiff against both defendants, if they believed from the evidence the facts upon which the instruction was predicated. The rule is that where an instruction so concludes it is bad unless it covers every phase of the case that is supported by evidence. The instruction in question ignored that rule, in that it left out of consideration the question of the contributory negligence of