9 W. Va. 33 | W. Va. | 1876
This was an action instituted in the circuit court of Wood county, by the defendant in error against the plaintiff in error, to recover'the value of certain goods delivered to the plaintiff in error to be carried to the defendant in error, at Petroleum Station, on the road of said Company, for reasonable reward. And it is alleged that the plaintiff in error so negligently conducted itself in regard to the transportation of said goods that “they were wholly lost to the defendant in error.” A judgment was had by the defendant in error to which the plaintiff in error has obtained a supersedeas from this Court. Several questions are relied upon for the reversal of said judgment.
The first is, did the court err in overruling a demurrer to the declaration? The declaration is taken, evidently from two forms given by Robinson in the fourth volume of his Practice pp. 780-3. These are the copies of declarations in the cases of Pozzi v. Shipton, 35 Eng. C. L. 575, and Raphael v. Pickford, 44 Eng. C. L., in which cases it was decided that a recovery could be had against a carrier, for any species of loss for which a carrier would be responsible ; 4 Rob. New Prac. 781. It is claimed that the declaration should have alleged the non delivery in express terms ; that the allegation that the goods “were by the negligence of the carrier wholly lost to the defendant in error,” is not equivalent to an express denial of delivery, and therefore insufficient. This was the very allegation in the declaration of Raphael v. Pickford. In that case the goods came to hand, but too late to be of value to the plaintiff. Now if that would be good, under such circumstances, it must be good if never delivered, as in the present case. Our statute in regard to demurrers provides, “that unless it be to a plea in abatement, the court shall not regard any defect or imperfection in the declaration or pleading, whether it has heretofore been deemed mispleading or insufficient plead
The next error relied upon is, because the court refused the plaintiff in error a continuance upon the ground disclosed by the first bill of exceptions. These facts are, substantially, that the late George H. Lee was the chief counsel for the defendant, and that he departed this life on the eighteenth day of November, 1873, that being the first day of the term — still in session on the twenty-third of January, 1874, — that it was supposed that Judge Lee had certain memoranda or papers, called “tracers,” made by the defendant or its agents, when goods were claimed to be lost; that the counsel present -could not procure these • papers, but which if procured' would not be evidence. The absence- of these papers was the only ground upon which the application for a continuance was placed; and it was admitted that the papers could not be used as evidence if present. It was not claimed that the defendant had no counsel by reason of the death of Judge Lee or that they would suffer from that cause if
The second bill of exceptions is taken to the admission of the receipt executed by the agent of the railroad company, upon the- ground- that it is different from that alleged.in the declaration. The receipt is for “one box boring tools, one sand pump, one boring stem.” The declaration alleges “that the plaintiff caused to be delivered to the defendant, and that the defendant then and there accepted from the plaintiff,” one box of oil well tools,” (containing certain enumerated articles) one drill stem and one sand pump — and proved that a boring stem was called, indifferently, augur stem, drill stem and boring stem.” I- think there was no error in permitting this' receipt to go to the jury, all prerequisites having been proven to make it admissible ;• — -such as the agency of and execution of the receipt by Montgomery — the description in the declaration and receipt being substantially the same;
The fourth and last question arises upon the third bill of exceptions taken at the trial. Alter verdict the defendant moved the court to set aside the verdict and grant a new trial on the ground that the verdict was contrary to the evidence; and on consideration of that motion the court overruled it and entered judgment. The facts are certified. There can be no doubt about the right of the plaintiff to a recovery under the facts certified according to the verdict of the jury. It was proven
I am therefore of opinion that the judgment ■should be affirmed with costs and damages to the ap-pellee.
Judgment Affirmed. ■