61 W. Va. 597 | W. Va. | 1907
The plaintiff, in December, 1903, during the prevalence of an epidemic of smallpox in Fayette county, and who had been taken with that disease, was arrested at Montgomery by the health officers near the railroad of the defendant company about three o’clock in the afternoon, and put into a common box car and locked up, without any provision for fire or bed-clothing to protect him from the severe cold weather then prevailing. This car was, about six- o’clock in the evening of the same day, taken up by the defendant, put into a freight train, and about twelve o’clock that night set out on a side-track at Fire Creek near the county pest house, without any notice to the defendant’s agent or to the pest house authorities. The next morning about ten o’clock the plaintiff was discovered, taken out of the car and carried to the pest house, where it was found that both his feet were badly frozen, so that in a few days the flesh began to slough off the bones, necessitating amputation of one leg in May and the other in July following. He endured intense suffering the night of his arrest and transportation and for several weeks afterward, but finally recovered from the disease and was released.
The plaintiff had nothing to do with the arrangements with railroad for his transportation. In November, 1904, he in
The court below sustained the defendant’s demurrer to the second count, and overruled it as to the first. There was issue and trial only on the first count, resulting in a verdict and judgment thereon for the plaintiff for $3,-000. The trial court refused a new trial, and the case is
Upon the trial there was practically no conflict of evidence , respecting the manner in which the plaintiff had been dealt with by the health officers and by the railroad company, nor does the evidence leave any doubt that the plaintiff lost his legs by the cruel and inhuman treatment of the health officers and the agents of the railroad company; and if we disturb the verdict and judgment, it will be because of technical rules of practice binding us and now urged for reversal of the judgment.
It is claimed by the railroad company that the plaintiff’s remedy was ex delicto and not ex contractu, and that his suit in assmnpuit was not a proper substitute for one in case. The plaintiff, on the other hand, seeks to sustain the verdict, and judgment, not upon an actual contract of carriage for hire and reward with the defendant, as charged in the first count and of which there is absolutely no evidence, but, first, upon the implied contract which he claims arose out of the relationship of carrier and passenger while being carried from Montgomery to Fire Creek; and, second, upon the theory that the contract for carriage made by the county court with the defendant company was for his sole benefit, or for him as one of a class of smallpox patients, which he is entitled to enforce.
The first count unmistakably pleads a special contract of carriage for hire and reward; and the verdict and judgment can not stand, unless the contract as' laid is supported by proof. Baltimore etc. R. Co. v. Rathbone, 1 W. Va. 87, cited with approval in Kline v. McClean, 33 W. Va. 37; Davidson v. Ford, 23 W. Va. 617, 627. It is suggested that, while this count charges a contract of carriage for hire and reward, it does not allege payment of the price, and that the consideration charged may be treated as surplusage, and the declaration stand as upon an implied contract arising out of the relation of carrier and passenger. In actions ex delicto, words of promise, agreement and undertaking contained in a declaration may be treated as mere inducement to the duty imposed by law; but in actions ex contractu, where there is an averment of a promise and consideration, the declaration will be construed as upon the contract, and
In the case at bar, the plaintiff elected to sue in assump-sit; and the count in the declaration upon which the trial was had was upon a contract of carriage for hire and reward, described as entire. In such cases, if there be even a very slight variation in the proof of it from the description, the variance is fatal. Hutch, on Carr., section 1335, and cases cited; James & Mitchell v. Adams, 8 W. Va. 548, 16 W. Va. 245; Cyc. 356; Colburn v. Pomeroy, 44 N. H. 19, citing 1 Ch. Pl. 297, and other cases. In an action of assumpsit, one of the defenses is want of consideration. 5 Rob. Prac. 255. The only proof offered of any contract for carriage related to the one alleged in the second count of the declaration. The writ of error awarded does not bring up the action of the trial court in sustaining the demurrer to that count. We can not look to it, therefore, to support the verdict and judgment. There was no issue on that count, no trial, and no response thereto by the verdict of the jury. Met. Life Ins. Co. v. Rutherford, 95 Va. 773, 780.
From these authorities, we are forced to the conclusion that the court below erred in refusing to give to the jury the defendant’s instruction number one, based on the failure of the plaintiff’s evidence to prove the contract as alleged, and
The only other errors assigned relate to the rulings of the court below upon the plaintiff’s instructions numbered two, three, four and nine. These are all based upon the theory of an implied contract of carriage, not the expressed contract alleged in the first count. Number two tells the jury in substance that, if they find that persons other than the defendant or its agents put the plaintiff, infected with smallpox, in the defendant’s car to be transported to the pest house, and after being informed thereof hauled the said car from Montgomery to its siding at Fire Creek, the plaintiff thereby became a passenger in said car; the third says that, if under substantially the same circumstances stated in the second the defendant accepted the plaintiff as a passenger for the purposes stated, it became thereby bound to observe all the obligations of care, diligence and provision for safety- and comfort due from carrier to passenger in like condition; the fourth propounded to the jury the proposition that, if a carrier, though not obliged to do so, accepts as a passenger one infected with a contagious disease, it is bound to exercise the degree of care commensurate with the responsibility it has thus voluntarily assumed to insure the safety of the passenger, considering his physical condition; and the ninth is substantially a re-statement in a different form of number two. These instructions, while we think they correctly propound the abstract propositions of law covered by them and are supported by the authorities cited by counsel, yet they were not apropos. They might be suited to a case made upon an implied contract, but they ignore the necessary element of special contract charged in the declaration on which the case was tried. Pt. 4 Syl. Peters v. Nolan Coal Co., decided at the present term. The defendant’s objections to these instructions, therefore, were well founded, and should have been sustained.
The plaintiff has cross-assigned as error the ruling of the court below sustaining its demurrer to said second count. We think that count is good, and., if sustained by proof, will entitle the plaintiff to .recover. The contract being there stated, however, as an entirety, the plaintiff may pos
We therefore reverse the judgment of the circuit court, overrule the demurrer to the second count of the declaration, set aside the verdict of the jury, and award the defendant a new trial; and the cause is remanded to the court below, with leave to the plaintiff if so .advised to amend his declaration, and to lie further proceeded with according to law.
■Reversed. Remanded.