| W. Va. | Jan 15, 1872
In the case under consideration, the defendant came into court, at the first term after judgment entered at rules, and demurred generally to the plaintiff’s declaration, in which the plaintiff joined, and at the same time defendant pleaded not guilty and put itself upon the country, and the plaintiff did likewise; whereupon the office judgment and writ of enquiry were set aside. The record shows this to have taken place April 18th, 1868. On the 20th day of April, 1868, “came again the parties by their attorneys, and there being no cause of demurrer assigned by the defendant to the plaintiff’s declaration, the said demurrer was overruled, and thereupon the defendant pleaded non-assumpsit and put itself upon the country, and the plaintiff did likewise, and the trial of the issue was continued. On the 28th of April, 1870, the parties came by their attorneys, and the defendant, by its attorney, tendered a demurrer to each count of the plaintiff’s declaration; the plaintiff objected to the filing of said demur
It seems to me the refusal of the court to permit the defendant to file said demurrer is equivalent to overruling the demurrer after, it is filed. If the declaration is sufficient to enable the court to proceed to judgment according to law and the very right of the cause, the demurrer should be overruled; and as in such a case the defendant’s rights could not be prejudiced by the overruling the demurrer, I cannot see that he is injured by the court refusing to permit the filing of the demurrer. He has the same remedy in either case, if the court errs.
But in the case under consideration, the count complained of is sufficient in law, the language, “ the defendant, before and at the time of the committing of the grievances hereinafter mentioned, were the owners and proprietors of a certain railroad, to-wit, the Baltimore and Ohio railroad, and of certain carriages used -by it for the carriage and conveyance of goods and chattels in, upon, and along said railway from a certain place, to-wit, Parkersburg, Wood county, West Virginia, for hire and reward to it the defendant, in that behalf,” is a sufficient allegation that defendant was a common carrier ; because it is the very definition of a common carrier. I think the principle is the same as laid down by this court in the case of Rauch vs. Rathbone Oil Tract Co., infra, and cases therein cited, and Express Company vs. Kountze Brothers, 8 Wallace, 842, &c.; and Jones et al. vs. Pitcher & Co., 3 Stew. & Port., 135 and 171. The court, therefore, would not have erred by overruling the demurrer, and consequently has not err ed in refusing to file it.
As to the demurrer to evidence. The evidence, as set forth in the demurrer, shows that the plaintiff was entitled to recover; the judgment was therefore properly entered for him. Boyd’s Adm’r vs. City Savings Bank, 15 Gratt., 503. A carrier is liable for all losses that he could have prevented by skill and foresight; and the onus is on him to show that the loss was such as he could not have prevented. Turney vs. Wilson, 7 Yerg., 340. If the defendant could not deliver the goods at the point of destination, could not have access to the
In the case before us, the defendant’s evidence only shows that the war was existing, but it does not show that the defendant was prevented thereby from delivering the whisky. The whisky was sold at the instance of the defendant, and was not lost by inevitable accident; it was, in fact, not lost at all, but taken by the defendant and converted to its own use without the consent of the owner.
I. do not think there is sufficient error to justify this court in reversing the judgment. It should be affirmed, with costs and damages.
Judgment affirmed.