be given against the plaintiff upon matter alleged in arrest of judgment, that he take nothing by his plaint, writ or bill, a new action might be commenced within one year after such reversal or judgment against the plaintiff. The other case is that of Manuel v. Norfolk etc. R. R. Co., 99 Va. 188, 37 S. E. 957, construing the present Virginia statute, which provides that if an action commenced in due time abate by the return of no inhabitant or by the death or marriage of the defendant, or if, 482 in such action, judgment for the plaintiff be arrested or reversed upon a ground which does not preclude a new action for the same cause, or the plaintiff shall proceed in the wrong form or bring the wrong form of action, and judgment be rendered against him solely upon that ground, a new action may be brought within one year after such reversal or judgment. In the first of said two Virginia cases a suit in equity had. been brought and dismissed for want of jurisdiction, and it was held that an action at law for the same cause of action thereafter commenced was not within the exception. In the second, the plaintiff had taken a nonsuit, and thereafter instituted another action for the same injury, and it was held that that case was not within the exception to the statute of limitations. The Tennessee statute reads as follows: "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest." The supreme court of Tennessee, in Sweet v. Electric Light Co., 97 Tenn. 252, 36 S. W. 1090, held that a suit commenced in a court having no jurisdiction and dismissed for want thereof, was a nullity, and that as, in such case, no action had been commenced within the meaning of the statute, such proceeding did not prevent the running of the statute, nor bring the case within the exception. That is the contention of the plaintiff in error, this cause of action having been first set up in a court having no jurisdiction and there dismissed on that ground, and then sued on in the state court more than one year after the accrual of the right of action, but within one year after the dismissal of the proceedings in the federal court.

In Smith v. McNeal, 109 U. S. 426, 3 Sup. Ct. Rep. 319, the supreme court of the United States construed the same Tennessee statute and arrived at the conclusion seemingly in conflict Am. St. Rep., Vol. 97-61

with that announced by the Tennessee court. Said case was decided in 1887, and the Tennessee case of Sweet v. Electric Light Co. in 1898, and, strange to say, the Tennessee court did not even notice the 483 former decision of a similar question upon the same statute by the supreme court of the United States. There is a distinction between the two cases, however. In Smith v. McNeal, the dismissal was for want of the allegation of a jurisdictional fact which actually existed and which, if alleged, would have given jurisdiction. In the Tennessee case, the former action had been brought in a court in which jurisdiction could not have been shown in the declaration. The construction given the statute in Sweet v. Electric Light Co. may be said to find some countenance in the opinion delivered by Mr. Justice Woods in Smith v. McNeal, where it is said: "Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace."

The latest case bearing upon the question is Pittsburgh etc. R. R. Co. v. Bemis, 64 Ohio St. 26, 59 N. E. 745, decided in January, 1901, construing the Ohio statute which reads as follows: "If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or if he die and the claim of action survive, his representatives may commence a new action within one year after such date-and this provision shall apply to any claim asserted in any pleading by a defendant." There, the status of the case was very much like that of this one. The action had first been brought in the federal court and dismissed for want of jurisdiction, and then brought in the state court, and it was held that the right of action was within the saving clause of the statute of limitations. The opinion delivered is very exhaustive and shows that the matter has been thoroughly considered. It analyzes fully the opinions in Smith v. McNeal and Sweet v. Electric Light Co., construing the similar Tennessee statute. Among other things that opinion says: "In no text-book, and in no reported case cited to us save Sweet v. Electric Light Co., 97 Tenn. 252, 36 S. W. 1090, is there any statement or intimation that the question of the jurisdiction of the court has any potency whatever

484 in determining what is, and what is not, an action, and we are convinced that in Ohio, whatever may be the rule elsewhere, there is no authority for the distinction which counsel seek to draw, and we are equally clear that it rests upon no substantial ground."

Our statute seems to be somewhat broader, or, to say the least, more positive and affirmative in the expression of the width of its scope than any of the other statutes; for it says "if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or by reason of any other cause, which could not be pleaded in bar of an action," a new action may be brought within one year after the dismissal. It is a highly remedial statute and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law, from loss of his right of action by reason of accident or inadvertence, and it would be a narrow construction of that statute to say that, because a plaintiff had, by mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it. In this connection, Lawrence v. Winifrede Coal Co., 48 W. Va. 139, 35 S. E. 925, is relied upon by plaintiff in error. That was a case in which the plaintiff failed, after having brought his suit, to file his declaration within three months, by reason of which his action was dismissed at rules. He claimed the benefit of said section 19 of chapter 104 of the Code, and it was held that he was within the letter of it, but that he could not claim the benefit of it for the reason that the dismissal was wholly imputable to his voluntary abandonment of the suit. In the opinion of the court, delivered by Judge Brandon, it is said: "He either intentionally abandoned his first suit, or neglected it, which operated in law to discontinue it. It is a voluntary dismissal, or call it a discontinuance, by reason of the plaintiff's nonaction." Here it cannot be said that the plaintiff below had voluntarily dismissed his former action in the federal court, for he prosecuted it to final judgment and defended the writ of error in the appellate court, and went out of the court, not by reason of his. failure to prosecute, but by force of the strong hand of the court, pronouncing the law against him on the question of jurisdiction. The two cases are not analogous, unless we adopt the 485 reasoning of the Tennessee court whereby a distinction is made upon very narrow and technical grounds which have been declared by another reputable court, upon an apparently more mature and thorough consideration, to be unsound.

In support of the demand set up in this action, the principles of law, imposing upon a master liability for the acts of his agent, are relied upon; it being insisted that the injury for which damages are claimed from the defendant is the result of a negligent act of the defendant by its agent. Defendant below, plaintiff in error, insists that the injurious act, if done by its agent, was outside of the scope of his agency or authority. These contentions, upon the peculiar facts involved, present a novel case and a question rather difficult of solution.

Tompkins, a brakeman on the C. & O. Ry., holding an insurance policy issued by the defendant company, providing, among other things, for the payment of a weekly indemnity of ten dollars, in case of such injury, by external, violent and accidental means, as should, independently of all other causes, immediately, continuously and wholly disable and prevent him. from engaging in any work or occupation for wages, stepped on a peach seed at Huntington, West Virginia, on the second day of July, 1897, whereby his right foot and ankle were so wrenched and sprained that, after having subsequently made three trips as brakeman, the injury required attention and his physician placed his foot in a plaster of paris cast to keep it and the muscles and ligaments rigidly in a certain position, upon the theory that the ligaments, supporting the lower part. of the foot, had been badly strained, lacerated or broken loose, and must be in some way held in place long enough to permit them to heal and regain sufficient strength to support the lower part of the foot. This was done by Dr. George S. Bonner of Clifton Forge, on or about the fifth day of September, 1897, who says his conclusion, upon his diagnosis, was that the injury was "nothing more than the weakness which usually follows a sprain and the susceptibility to rheumatism or something of that sort." On or about the eighth day of October, 1897, said cast was taken off by Dr. James F. Hughes, who was the examining surgeon, or medical adviser, of the insurance company, and had come to Tompkins' house for the purpose of making an examination of Tompkins in respect to the injury, under a clause in the 486 policy, requiring the insured to allow such examination in such manner and at such times as the medical adviser might require. After making the examination, Dr. Hughes left without replacing the cast or putting on another, and the plaintiff's foot soon became worse and he has partially lost the use of it, although, after the lapse of considerable time, an effort was made to restore it to health and strength by again encasing it

as before and other treatment. There is a sharp conflict as to what occurred between the plaintiff and Dr. Hughes at the time the examination was made, the claim on the part of Tompkins being that the casing was taken off against his protest and by his unwilling submission to the exercise of the company's right of examination as proposed and executed; and, on the part of the company that Tompkins consented to the removal of the support and the discontinuance of its use.

This explanation sufficies to fairly indicate the nature of the objection made to the declaration, which sets out, in varying language, in its four counts, matter which is substantially covered by the foregoing statement, and alleges the duty of the defendant to use care, skill and a due regard for the interests and welfare of the plaintiff in the exercise of its right of examination, and its failure so to do, as well as its wrongful and negligent conduct in removing the plaster cast and failing to restore it, and in requiring and causing the plaintiff to let it remain off.

The objection, on demurrer as indicated in the brief filed for plaintiff in error is that "in various counts in the declaration alleging negligent and unskillful manner of making the examination, there is interwoven alleged malpractice, bad medical advice and treatment subsequent to the removal of the cast and examination." The charge is, to some extent, borne out by the language of the declaration, but that does not make it faulty on demurrer. No recovery would be permitted on that part of the declaration. It must be treated as a surplusage, irrelevant matter, not vitiating the declaration, but objectionable on the ground that it encumbers the record. Utile per inutile non vitiatur: 4 Minor's Institutes, 1264; St. Pl. 424.

Further assignments of error are predicated upon the rulings of the court in giving and refusing instructions and in refusing a new trial. A résumé of the evidence is necessary to an intelligent disposition of them.

487

The testimony of the plaintiff, aside from the particulars of his original injury and treatment of it prior to the removal of the plaster cast is, in substance, as follows: At first he refused to allow Dr. Hughes to remove the cast until he should consult his physician; Dr. Hughes insisted that it be taken off, and he finally consented; Dr. Hughes represented that the insurance company had sent him there to examine the injury, and if he was not permitted to do so, the company would not allow him anything; he yielded to this, thinking it best to allow