When a plaintiff has closed his evidence, does a demurrer thereto, in which the plaintiff has joined, prevent him from supplying essential evidence inadvertently omitted? Admittedly not if he moves to set aside the joinder and to reopen the case before the court passes on the demurrer. Affirmative action on such motion is within the sound discretion of the court. But suppose the plaintiff does not perceive the deficiency in his evidence and makes no motion for leave to enlarge the same, what is his situation? Should the court summarily render judgment, or afford opportunity to the plaintiff to supply the defect? Reason and justice require the latter course, if it is reasonably apparent to the trial court that the necessary evidence exists. Such, indeed, seems to be the rule of Ins. Co. v. Wilson, 29 W. Va. 528. 2 S.E. 888, *Page 362 889. Syllabus 10 thereof reads: "The whole proceeding upon a demurrer to evidence is under the control of the judge before whom the trial is had; and if, owing to a mistake or other causes, a material fact be omitted without which the merits of the case can not be decided, the demurrer should be set aside and a new trial awarded; and this may be done on motion ofeither of the parties, or by the court itself, before finaljudgment." (Italics inserted.) Of course the court should not reopen the case on mere conjecture that the plaintiff may be able to strengthen his hand.
A demurrer to evidence is none too highly favored at best. Its only proper office is to test the legal right of a litigant on the facts. It is not a device for the entrapment of a litigant who, through inadvertence, has failed to develop in his evidence and essential element of his case.
It would seem to be unreasonable to require that the court must judicially know that such element can be established. In my judgment, it is sufficient if the court perceives that such evidence probably exists, or that the evidence on the vital point has been only partially developed as in the case at bar. This, as I apprehend, is the meaning of Lass v. Lubic, 101 W. Va. 546,133 S.E. 142; where the court said: "Where, in a case submitted to the court on a demurrer to plaintiff's evidence, it appears that there has been an omission to adduce all evidence on the issue upon which the right of recovery depends, and, if the interest of justice will thereby be subserved, this Court will afford an opportunity to a proper development of the merits of the case, by reversing the judgment below, and awarding a new trial." And though the cases on which that case is predicated may have been more restricted, the later rule is sound in principle, in my opinion, and, within strict limitations, should remain the rule of the commonwealth. (Whether I would have applied the rule on the facts of Laas v.Lubic need not be discussed.) It is a benign and reasonable rule to the end that justice may be done.
Where, in the trial court there has not been a full development of a controlling point, the appellate court should remand *Page 363 the case for such development to be made, if, from the record, it reasonably appears that the essential evidence exists.
These principles are in no wise affected by the fact that the trial court overruled defendant's demurrer to the evidence and entered for the plaintiff a judgment which cannot be upheld on the evidence as submitted.