text of the instrument. 18 C. J. tit. "Deeds," [ between the two cases. Each construes the § 237. entire instrument in order to determine and [5] That the latter meaning was the one give effect to the intent of the grantor. Unintended is indicated by the position of prom- der such circcumstances when the same inence given to the technical phrase used. principle of construction is followed in each It defines, explains, makes clear the meaning case, it. cannot be said that the conclusions of the word preceding it, and thus conforms reached are inconsistent because in the one to the clear intent and purpose of the grant-case the first part of the grant is held to be ing and warranty clauses by giving to Cyn- modified by a subsequent clause, while in the thia A. Maddy an estate in fee tail, which other it is not. the statute raises to a fee simple. There is therefore no repugnancy between the grant and habendum of the deed of 1893. * In view of our conclusion in this respect, it is unnecessary to consider the question, which shall prevail in case of irreconcilable conflict between the grant and habendum clauses of a deed, other than to refer to Freudenberger Oil Co. v. Simmons, 75 W. Va. 337, 341, 83 S. E. 995. Ann. Cas. 1918A, 873; Paxton v. Benedum-Trees Oil Co., 80 W. Va. 187, 94 S. E. 472; 1 Devlin on Real Estate (3d Ed.) §§ 214, 219; 18 C. J. tit. "Deeds," § 329. The conclusion which we have reached is supported in every aspect by the case of Wallace v. Hodges, 160 Ala. 276, 49 South. 312. The deed there construed granted property to "our beloved son, William R. L. Hodges, and his heirs lawfully begotten by him, to have and to hold unto the said William R. L. Hodges and the children of his body, their heirs and assigns, forever." [6] Nor is there any need to comment upIt was contended that inasmuch as William on the inadmissibility of the affidavit filed R. L. Hodges had, at the date of the execu- by the scrivener who prepared the deed of tion and delivery of the deed, two children, 1893, with regard to the alleged intention the latter took as tenants in common with of the grantor that his wife and children their father. But the court declined to adopt take jointly, and the scrivener's effort to such construction, holding that it was neces- make the deed conform to such intent. sary to reconcile the granting and habendum instrument itself is susceptible of construcclauses, where possible, and that the word tion, and hence cannot be varied or modified "children" was used in the deed as the equiv-in legal meaning by an affidavit made by the alent in intent and meaning of "heirs of his body" or "issue"; thereby creating in the son an estate tail, which was converted by the statute into a fee. The scrivener 27 years after its execution. The deed was executed by the grantor in the form in which it now appears; it is complete in itself, and all rights thereunder must depend upon the proper construction of that instrument alone. Collins v. Degler, 74 W. Va. 455, 82 S. E. 265. Of the cases relied on by plaintiff to support his contention, Wills v. Foltz, cited, and Allen v. South Penn Oil Co., cited, already have been discussed. Graham v. Graham, 4 W. Va. 320, merely announces by way of dictum the principle later decided in Wills v. Foltz, supra, that a devise to the testator's daughter and her children creates in them a joint estate, unless other portions of the will express a different intent. In Graham v. Graham such different intent was found to exist from a construction of the entire instrument, and the devise was held to be one to the daughter in fee tail, which the statute raised to a fee, thus conforming to the conclusion which we have reached in this case. In Weekley v. Weekley, 75 W. Va. 280, 83 S. E. 1005, after the first part of the granting clause had purported to confer upon W. J. Weekley a fee simple estate in certain designated property, there was incorporated as part of the grant a clause providing that the "land shall fall to John W. Weekley and his heirs when the said W. J. Weekley is done with the same." From a construction of the instrument as a whole, it was held to be the grantor's intention to vest only a life estate in W. J. Weekley and remainer in fee in John W. Weekley. When Our conclusion, therefore, is to affirm the * * * As the parties to the deed of 1893 were husband and wife, it vested in the grantee only an equitable estate in the land conveyed, as also did her deed of 1918 to the two children of herself and her husband. They took under the deed the estate acquired by her through her grantor; that is, an estate enforceable in equity, though invalid McKenzie v. Ohio River R. Co., 27 at law. W. Va. 306; Humphrey v. Spencer, 36 W. This estate and the Va. 11, 14 S. E. 410. right of enforcement was vested by her deed in her grantees. "Any interest in, or claim to, real estate may be disposed of by deed or will." Section 5, c. 71 (sec. 3743), Code. "The word 'land' or 'lands', and the words 'real estate' or 'real property,' include lands, tenements, and hereditaments, and all rights thereto and interests therein except chattel interests." Clause 15, § 17, c. 13 (sec. 346), Code. The principles herein stated apply to the same extent and with equal force as if the deed had passed the legal title to the land. (105 S.E.) (87 W. Va. 588) ANNESE v. BALTIMORE & O. R. CO. (No. 3374.) (Supreme Court of Appeals of West Virginia. Feb. 1, 1921.) (Syllabus by the Court.) 1. Justices of the peace 91(1)-Complaint sufficient if person of common understanding will know what is intended. The complaint filed in a justice's court answers all the requirements of chapter 50 of the Code (secs. 2555-2794), if it be sufficient to enable a person of common understanding to know what was intended. 2. Carriers 156(2)—Carrier liable for unloading perishable goods in mud and rain, notwithstanding stipulation in bill of lading. Notwithstanding a bill of lading stipulates that property destined to be taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at the risk of the owner after unloading from cars or vessels, the carrier will not be relieved thereby from his gross negligence in unloading in the mud and rain at an unreasonable hour of the night goods consigned to such point, when the consignee is not present or could not reasonably be expected to be present, and when it is manifest that such goods because of their character will be certainly destroyed or rendered useless by the elements. 3. Carriers 150-Carrier cannot ordinarily relieve itself from liability for negligence. A carrier cannot by such contract ordinarily relieve itself from liability for negligence in the performance of its duties as carrier. 4. Carriers 150-Carrier cannot limit liability for unloading goods in mud and rain. When confronted with circumstances due to the elements rendering a carrier unable to make safe delivery of goods consigned to a particular destination, it cannot by contract excuse itself for its negligence in wantonly discharging said goods at such point in mud and rain in a place where they will certainly be destroyed and rendered useless. 5. Justices of the peace 101-Defects in complaint not excepted to cured by statute of jeofails. When a complaint before a justice states a good cause of action, not excepted or demurred to, and on the trial evidence is admitted without objection on a cause of action not clearly stated in the complaint, the statute of jeofails, after verdict and judgment, will cure any defect of pleading. Error from Circuit Court, Barbour County. Action by Stefan Annese against the Baltimore & Ohio Railroad Company before a justice of the peace. Judgment for plaintiff on appeal to the circuit court, and defendant brings error. Modified and affirmed. ་ Arthur S. Dayton, of Philippi, for plaintiff in error. Albert G. Jenkins and J. Blackburn Ware, both of Philippi, for defendant in error. MILLER, J. In an action begun before a justice, and tried before the circuit court upon appeal, plaintiff obtained a verdict and judgment for $150.00, interest and costs, the judgment before the justice being $168.49. The cause of action was the alleged negligence of defendant in the delivery of certain merchandise shipped to him from certain points and consigned to him at a station known as Century No. 2 Mine, on defendant's railroad in Barbour County, consisting of flour, sugar, salt, and other perishable goods. The acts of negligence alleged and relied on in the complaint and in plaintiff's evidence before the court and jury were that defendant maintained no building, station, shed or other structure at said point, Century No. 2 Mine, to protect goods from the ele ments after being unloaded from its railroad cars; that the goods sued for and so consigned were, at an unreasonable hour of the night, to wit, at about two o'clock in the morning, out of business hours, and when defendant had no right to expect plaintiff to be present to care for such goods, and without notice to him that the goods would be so transported and unloaded at such unreasonable hour, and without taking reasonable precaution to protect the same, then and there unloaded the goods at said destination while it was then and there raining, with notice and knowledge of the character of the goods and of their liability to be destroyed and injured by the water, which delivery, be cause of defendant's negligence, did not constitute legal and proper delivery thereof, and whereby a large part of said goods were damaged, destroyed and rendered useless, and whereby plaintiff was damaged and sustained loss in the amount sued for, namely, $168.49. [1] We think this informal complaint in an action begun before a justice stated a good cause of action. It was sufficient to enable a person of common understanding to know what was intended; that is all that is required by chapter 50 of the Code (secs. 2555-2794) relating to pleadings in justices' courts. O'Connor v. Dils, 43 W. Va. 54, 59, 26 S. E. 354; Poole v. Dilworth, 26 W. Va. 583; Toledo Scale Co. v. Bailey, 78 W. Va. 797, 802, 90 S. E. 345; State v. Emsweller, 78 W. Va. 214, 88 S. E. 787. The defendant pleaded and relied on the following provision of the bills of lading: "Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloading from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall be at owner's risk until the cars are attached | carried most of them into the store, and tried to and after they are detached from trains." And it is further averred that if loss or damage had been sustained by plaintiff, it had occurred after the goods had been unloaded from defendant's cars or rehandled; that it maintained no agent at the point of destination of the goods, at which point there was a local custom that shipments should be piled by defendant's tracks when unloaded, at the owner's risk. The evidence shows that the freight train which carried plaintiff's goods was what is called a pick-up train, of irregular schedule; that formerly it was due to arrive at Century No. 2 Mine about five o'clock in the evening, but at the time of the shipment of plaintiff's goods, in January, 1915, and for some time prior thereto, its schedule brought it to that point about five o'clock in the morning; but the evidence shows that on the morning the goods sued for arrived and were unloaded by defendant, the train reached Century No. 2 Mine some time between three o'clock and four o'clock in the morning. The conductor says that the range of the time of arrival for the period of six months preceding January 6, 1915, was from midnight to five o'clock in the morning. The witnesses vary in their recollection as to the time of the arrival of the train at Mine No. 2 on the morning in question, but it is clear that it was between three and four o'clock. And the witnesses agree that it had been raining practically all night; the conductor of the train admits it had rained hard just before he reached Century No. 2 Mine, and that it rained hard twenty minutes after the goods were unloaded. At least one witness, Tony Quinto, who worked about 150 feet away, says it was pouring down rain while the goods were being unloaded, and he says the time was a little after three o'clock. He got up at three o'clock, and he then heard the train coming. The place where the goods were unloaded was where a private road comes down across defendant's railroad. All the witnesses agree that the road and grounds surrounding were very wet and muddy, and a number of witnesses say the flour in paper bags, sugar, salt, and feed were put off in the mud and water, and a large portion of them were totally destroyed by coming in contact with the mud and water and the rain falling upon them. The plaintiff was absent from home the night the goods arrived, but his brother Angelo Annese, who was called, says that about four o'clock he dressed, went out about five o'clock, found it raining hard. He went down to the place where the goods had been unloaded, and swears he found them unloaded in six inches of mud. He covered them with oil cloth, called his brother on the telephone, and following his instructions to save as many as possible, but all were wet and a large portion of them could not be saved. [2] The sole question presented for decision is, was it actionable negligence under the facts and circumstances described, notwithstanding the provision in the bills of lading pleaded and relied on for the defendant company, to unload the goods in the rain and mud, as the jury were warranted in finding and for which plaintiff may recover damages for the loss sustained? That it was the custom to deliver shipments for the plaintiff at the place where the goods in question were delivered, is conceded; but plaintiff and some of his witnesses say the train usually arrived about five o'clock in the morning, but that it had never before occurred that goods perishable like these were put off in the rain and mud at such unreasonable hour, when they would certainly be damaged or destroyed. Following prior cases we decided recently that a special contract of the kind pleaded, when reasonable and which does not undertake to provide against the carrier's liability for negligence of its agents and servants, is enforceable. McClure v. Norfolk & Western Railway Co., 83 W. Va. 473, 98 S. E. 514. In that case, however, we held the provision of the contract inapplicable, in as much as the railway company within the meaning of the contract did maintain an agent at the point of shipment. The evidence is that the defendant maintained no depot or station agent at Century No. 2 Mine, and that plaintiff was accustomed to receive goods consigned to him there substantially on the crossing where the goods sued for were delivered; but there is no evidence that he was accustomed to receive them at any unreasonable hour as three or four o'clock in the morning, in a rain storm; nor is there any evidence that the defendant ever before undertook to make delivery of goods to plaintiff at the same point at any such unreasonable hour as these goods were unloaded. Our decisions say, in accordance with the better rule, that a railroad company is not re quired to give notice to the owner of the arrival of goods, the duty resting upon the owner to be on the lookout for their arrival, but that he has a reasonable time after their arrival to remove them, after which the duty of carrier ceases and that of warehouseman begins, where the carrier maintains an agent or station house in which the goods may be stored. Berry v. W. Va. & Pittsburg R. R. Co., 44 W. Va. 538, 30 S. E. 143, 67 Am. St. Rep. 781; Hutchinson v. Express Co., 63 W. Va. 128, 59 S. E 949, 14 L. R. A. (N. S.) 393; Hurley & Son v. N. & W. Ry. Co., 68 W. Va. 471, 473, 69 S. E. 904. In this case plaintiff (105 S.E.) of course knew that defendant maintained no station or warehouse at the place of delivery and had no agent there to look after the goods. But can defendant under its commonlaw obligation to make safe delivery contract against gross negligence? It is said the damages were sustained after delivery, but this is not true unless the delivery of the goods at the unreasonable hour of three or four o'clock in the morning constitutes good delivery. The law applicable to common carriers is that delivery must be made at the point of destination at a reasonable hour, and not negligently. 4 R. C. L. 825. It might be said that the rain doing the damage was the act of God, against which the defendant was not bound to provide. But the vis major never relieves the carrier, if, as the jury have found in this case, it was not the sole cause, but was accompanied by defendant's negligence in attempting to make the delivery in the mud and rain at an hour when the consignee could not be expected to be present to receive and protect the goods. 4 R. C. L. 719, and cases cited. When encountering the vis major, it is the duty of the carrier to do all in his power to protect goods committed to his care. The defendant's carriage having reached its destination in a rain storm at an unreasonable hour of the night when no one was present to protect the goods, it was not warranted in thrusting them out of its car to be destroyed by the elements. Such attempted delivery did not discharge it from liability as carrier. 4 R. C. L. pp. 709, 710; McGraw v. B. & O. R. R. Co., 18 W. Va. 361, 41 Am. Rep. 696; 2 Hutchinson on Carriers, (3d Ed.) § 704, p. 785. [3, 4] In answer to the argument based on the common-law liability of carriers, it is said the contract pleaded relieved defendant from liability for resulting injury to the goods when they reached their destination and were put off there. But the law of carriers is that they can not contract against negligence, and if it was negligence under the circumstances to put plaintiff's perishable goods off in the night time in the mud and rain, where it must have been apparent they would certainly be destroyed, what principle of law can relieve defendant from liability? It is said by counsel that it would have been a violation of the contract to have carried the goods beyond their destination, that to have done so would have rendered defendant liable for damages resulting to the owner. The reply to this is that the carrier, notwithstanding his contract, is not liable for damages for failure to do the impossible, in this case to make a safe delivery when the elements were certain to destroy the goods. When confronted with such circumstances, its duty was to retain the goods on the car, if unable otherwise to protect them, and notify the owner. Savannah Ry. Co. v. Com 555; 2 Hutchinson on Carriers (3d Ed.) §§ 645, 649. In opposition to this view of the law counsel for defendant, company relies on the holding of the Supreme Court of Pennsylvania in Allam v. Penn. R. R. Co., 183 Pa. 174, 38 Atl. 709, 39 L. R. A. 535. In that case the delivery was in the day time, and it was held not negligence for the railroad company to unload goods on a platform during a storm, where it had no building and at a station where it had no agent, and the bill of lading provided that when delivered on the platform the goods should be at the risk of the owner. But if in this case the delivery had been in the day time, under the same circumstances and conditions, we would still be disposed to hold the defendant liable for negligence. Undoubtedly a carrier may limit its common-law liability, not involving negligence, but we hold that when as in this case the defendant was guilty of gross negligence in putting the plaintiff's goods off in the mud and rain in the night time to certain destruction, the contract against liability was unavailing, and defendant's liability for safe delivery was not fulfilled by such negligent attempt at delivery of the goods. In Savannah Ry. Co. v. Commercial Guano Co., supra, the Georgia court says: "It was further contended in behalf of the plaintiff in error, that the steamboat company exercised due diligence in the delivery of the freight, and that the submerging of the guano by the river was an act of God which could not have been foreseen. The goods were placed upon the bank of the river at a point below high-water mark, while it was raining and the river was rising, and where they were in imminent danger of being submerged on account of a freshet that was threatened at the time they were unloaded from the boat. No necessi ty appeared for a discharge of the freight at this particular time. It could have been carried on, and kept until a return trip of the boat. The casualty which caused the injury to the goods may be regarded as an act of God. but the carrier is not protected on this account where he could have foreseen the happening of the event, or by the exercise of due diligence could have provided against such an occurrence." [5] Another point of error urged by defendant's counsel is that the complaint predicates right of action only on two grounds: first, delivery at an unreasonable hour; and second, the duty of the defendant to protect the goods from rain; and as the complaint pleads no right of action for having unloaded the goods in the mud, no recovery can be sustained on that ground. This point was not made in the answer of the defendant below, and it is quite too refined a distinction for proceedings originating in justices' courts. Much of the evidence related to damages for unloading the goods in the mud. The evi on other grounds; and counsel for defendant undertook by instructions and special interrogatories propounded to the jury, to limit recovery solely to damages resulting from unloading the goods in the mud and to exclude recovery for loss sustained by the falling of the rain upon them after they were unloaded. As the complaint states a good cause of action, was not demurred to, and evidence was admitted on the theory of negligence in unloading the goods in the mud as well as from the rain upon them, we think any defect in the pleadings was cured after verdict and judgment by our statute of jeofails, section 3 of chapter 134 (sec. 4977) of the Code. Holliday's Ex'rs v. Myers, 11 W. Va. 276, 292, 293. In that case the court says: "But so far as I have seen, in no case in Virginia, or in this state, has it yet been held under the present statute, that said statute does not apply and operate, where the declaration does not show affirmatively, that the plaintiff has no right to recover against the defendant; nor has it yet been held, that the statute does not apply and cure after judgment, when the cause of action is merely so imperfectly or insufficiently alleged in the declaration, as that it does not show a perfect or complete right of recovery, and the court can see that the defect, though of substance, may be supplied by proper proof." Plaintiff's instructions Nos. one and two, which were both in accord with the principles herein stated, were properly given to the jury: those of the defendant rejected were not in accord therewith, and were properly denied. The interrogatories proposed by defendant to the jury were uncontrolling, and those denied were properly denied. (87 W. Va. 499) TINGLER V. LAHTI. (No. 4023.) (Supreme Court of Appeals of West Virginia. Jan. 25, 1921.) (Syllabus by the Court.) 1. Damages 188(1)—Evidence held insufficient to sustain a verdict for damages to plaintiff's automobile. Where, in an action to recover for injury to an automobile, occasioned by the alleged negligence of defendant, proof of the amount of damage is vague, indefinite, and speculative, consisting of general, rather than of itemized, estimates of the cost of repairs necessary to restore the car to its original condition, and based upon a hasty and insufficient examination of the machine, a verdict founded upon such evidence ought to be set aside and the case remanded for a new trial. 2. Justices of the peace 91(1)-Recital in summons held sufficient as statement of cause of action. Where the summons, in a case originating before a justice of the peace, contains, in addition to the statutory language, a more particular description of the nature of the wrong for which plaintiff seeks recovery, namely, "damages to his automobile," such recital is a statement of the cause of action, and has some of the elements of the informal pleading required by section 50, c. 50, Code 1918 (Code 1913, sec. 2604). 3. Appeal and error 236 (2) Informal statement in justice court held not reversible error, no bill of particulars being demanded in circuit court. And if the parties proceed to trial without other formal pleading, either oral or written, and plaintiff obtains a verdict and judgment both in the justice's court and on appeal in the circuit court, and defendant, though noting upon Another point of error relied on is that the trial therein the absence of such a comthe court below adjudged that plaintiff recov-plaint, yet does not demand or insist upon it er ten percentum damages on $150.00, the or upon the filing of a bill of particulars, deamount of the verdict of the jury, from Au- spite plaintiff's offer to file either the complaint gust 28, 1915, the date of the appeal from the or a bill of particulars, but without further judgment of the justice. The ten percentum objection allows the trial to proceed to judgauthorized by section 172 of chapter 50 of the ment, such failure to conform to the requireCode, is applicable only when the sum recov- 1913, sec. 2604), considered in the light of the ments of section 50, c. 50, Code 1918 (Code ered on appeal in the circuit court is equal informalities allowable in proceedings originatto or greater than the judgment appealed ing before justices, does not constitute reversifrom. As the judgment before the justice ble error. was $168.49, and that on the trial in the circuit court only $150.00, the statute giving ten Error to Circuit Court, Hancock County. percentum does not apply. As the difference between the damages adjudged and six perAction by E. M. Tingler against Frank centum is not sufficient to give this court Lahti. Judgment against defendant before jurisdiction, all we can do is to correct the a justice of the peace was affirmed on aperror, which we will do so as to give judg-peal to the circuit court, and defendant ment for plaintiff for $150.00, according to brings error. Reversed, verdict set aside, the verdict of the jury, with interest thereon and new trial awarded. from January 25, 1917, the date of the verdict, and the costs incurred by him before the justice, and the costs incurred here on this writ of error. Modified and affirmed. J. B. Levy, of Weirton, and J. A. McKenzie, of New Cumberland, for plaintiff in error. Oliver S. Marshall, of New Cumberland, for defendant in error. |