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reliable. This may or may not be so. and surname, leaving out the J., it binds Courts differ as to this. Many regard it him. A middle name is no part of a man's valuable, as it surely is in certain cases. name. Counsel of plaintiff says that it was We pass no opinion, as its weight is for the intended to tell the jury that the signature jury. Being admissible, we are not able to to the note was not good, because not signed say that it would not have had weight; and, “S. J. Whip.” If so, it would be clearly if such evidence might have been beneficial bad,—the instruction would be. But I do to the plaintiff, its rejection is error, as he not so construe it. The note, as signed, is was entitled to place before the jury all ad. binding on Whip, if not a forgery. The missible evidence. Kerr v. Lunsford, 31 W. words “as his note” give some trouble. What Va. 675, 2 L. R. A. 668, 8 S. E. 493. Coun- do they mean? If evidence had been given sel for defense argues that Carskaddon' was under the special pleas to show that Whip not shown to be an expert on handwriting. had been, hy fraud and trick, induced to sign He was cashier of a bank—had been for a paper different from what he designed, 1 twelve years—and, as such, it was his busi- would say those words would make the inness to examine signatures to checks to test struction bad, as telling the jury that it their genuineness, and was acquainted with would be no noto; that he must have signed Whip’s handwriting, and had frequently with purpose to make a note, which is not paid his checks. We think this entitled him so as to a bona fide holder for value, which to rank as an expert. Moreover, no objec- the law presumes Totten to be. Those tion was made on the specific ground of his words perform no office, and must be incompetency. The witness, through mod- omitted, if the instruction should be again esty, did not claim to be an expert; but that asked. Another instruction is that the jury is not necessary, if he states facts showing should find for the defendant unless “M. C. bim entitled to express an opinion. Rogers, Totten had possession of the note in his lifeExpert Testimony, g 17; 15 Am. & Eng. time.” That is true, but what evidence was Enc. Law, p. 278.

there to raise that question ? Totten in his It is assigned as error that pleas 2 and life brought the suit, and then had the note, 4 were admitted. No evidence was given in and, as the court instructed the jury on support of them, and no ground of reversal plaintiff's request, “the production in eviexists on that score, though the pleas are dence of the note sued on is sufficient evi. bad. Anos v. Stockert, 47 W. Va. 109, 34 dence that M. C. Totten had possession of S. E. 821. But as the case goes back to the the note in his lifetime.” There is no evicircuit court, it is proper to pass on these dence to justify said instruction No. 5 of pleas. If in fact Whip signed the note, he plaintiff, because it raised an issue not percannot get rid of it on the plea of fraud, tinent to the case, and was in conflict with misrepresentation, false pretense in its pro- that given for plaintiff. We can only juscurement, or want of consideration against tify it by saying it availed not, in view of the plaintiff, if a bona fide holder for val- the other instruction. But what did the ue, without notice of such fraud, etc. For jury think about it? Did it think the plainthis, First Nat. Bunk v. Johns, 22 W. Va. tiff must expressly prove that Totten had 520, 46 Am. Rep. 506, is full authority. The the note in his lifetime? We cannot say. pleas are also defective in not charging such Counsel for plaintiff asks us to hold that, notice to Totten before his purchase. Rob- as the special judge took only the oath specerts v. Tavenner, 48 W. Va. 632, 37 S. E. ified in $ 11, chap. 112, Code 1899, and did 576. Plea 4 is bad for same reasons, and not take the oath found in § 5, art. 4, of the also for putting in the duplicate defense that constitution, the judgment is therefore bad, Totten was not a holder for value. That and bases this assignment on State v. Bur. could be pleaded separately.

nett, 47 W. Va. 731, 35 S. E. 983; holding Two instructions were given on defend that a special judge must take the constituant's motion, of which the plaintiff com- tional oath. I dissented from that feature plains. One is that, before a verdict for the in that case, and I still think such special plaintiff could be found, it must be proved judge need not take that oath, as the legis“that the defendant's intestate, S. J. Whip, lature thought, because it required another signed the note sued on, as his note." It is oath; but the court does not now pass on said this instruction is confused and mis- that question, not deeming it important to leading. The note was signed, “Sandford do so. The court is unanimous, however Whip.” Evidence was given that Whip gen- that question may be, that the act of the erally signed, “S. J. Whip,” or “Sandford special judge is nevertheless valid as the act J. Whip.” It is clear that, for a recovery, of a de facto judge.

We think so, on genWhip must have signed his name to the eral common-law principles. See Judge note; that is, that it must not be a forgery. Dent's opinion in State v. Cross, 44 W. Va. But if he did sign his signature of Christian 328, 29 S. E. 527; dissent in Dial v. Hollandsworth, 39 W. Va. 6, 19 S. E. 557; Wal- | acting by authority or color of office is valid, cott v. Wells, 21 Nev. 47, 9 L. R. A. 59, 24 though not lawfully elected or appointed, or Pac. 367. It is generally held that an oath, disqualified to hold the office. In that case, though required by law, is not indispensable, $ 15, chap. 7, of the Code was cited, providbut is a mere incident, and does not confering that "all judgments given and all acts the office, and is not the office itself, though done by any person by authority or color of the person be punishable for acting without any office

before his removal there. taking it. Mechem, Pub. Off. 88 255, 262; from shall be valid though it may afterThroop, Pub. Off. § 629. It is there said wards be decided or adjudged that he was that the officer regularly elected, not taking not lawfully elected or appointed, or was the oath, ranks above a de facto officer, and disqualifieci,

or that the same had is one de jure, by defeasible title,-a lawful been forfeited or vacated.” Franklin . officer until turned out. Therefore the court Vandervort, 50 W. Va. 412, 40 S. E. 374, is now disapproves of the expression of opinion to same effect. So this is no cause for rein State v. Burnett that the acts of a special versal. judge are coram non judice for want of For reasons given above, the judgment is oath. A judgment would be neither void reversed, the verdict set aside, a new trial nor voidable for that cause. State v. Carter, is granted, special pleas 2 and 4 are stricken 49 W. Va. 709, 39. S. E. 611, is utterly in- from the record, and the ca::se remanded consistent with that feature of the Burnett for further proceedings. Case, in holding that a judgment by one

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J. B. OWENS, Piff. in Err.,

Statement by Lanar, J.:

Under a writ of lunacy in Troup county, MACON & BIRMINGHAM RAILROAD before a jury, of which the ticket agent of COMPANY.

the railroad was a member, Josh Owens

was adjudged insane, and committed to the (...... Ga.......)

State Sånatorium at Milledgeville. Being •1. The right of other travelers to a sometimes violent, he was handcuffed and safe and comfortable passage taken to the railroad station by his brother, rants a carrier in refusing to receive one the plaintiff in error, and another friend, who has been adjudged a lunatic, and who, acting as guards. Three tickets from Mountthough in charge of attendants, is loudly cursing and using obscene language at the time ville to Macon were purchased. The train of boarding the car.

stopped. The insane man was taken toward 2. Common carriers cannot absolutely the passenger car, but the conductor in

refuse to transport persons who are in structed that he should be placed in the sane, but may in all cases insist that they apartment ahead of the smoking car. Josh be properly attended, safely guarded, and se

Owens violently resisted being put on the curely restrained. 3. Where becomes

to car, though it appears that he was not transport a lunatic who, by reason of making any noise or outcry. The general his violence, may endanger the safety or inter- manager of the railroad company happened fere with the comfort of other travelers, the to be on the train, and, seeing the condition carrier is entitied to seasonable notic", in or

and conduct of the insane person, gave inder that it may make proper arrangements for his transportation.

structions that he could not be carried on

the train. The plaintiff replied that the (December 12, 1903.)

lunatic would be quiet if they could get E RROR to the Superior Court for Troup kim onta seat, at which Josh Owens him

County to review a judgment in favor self, with great noise and vehemence, began of defendant in an action brought to recover swearing, saying that he would not be quiet; damages for refusal to transport a passenger and, in reply to the continued objection of on defendant's train. Affirmed.

the general manager to allow him passage,

plaintiff stated that he would be willing *Headnotes by LAMAR, J.

to take his brother in the baggage car, NOTE.—For the similar question of the right which was also declined; witness for the of a carrier to refuse to carry person feeble in railroad stating at the trial that it was body and infirm in mind, see Croom v. Chicago, used for carrying express and breakables, M. & St. P. R. Co. 18 L. R. A. 602.

and was not in condition for the transportaAs to right of a carrier to refuse to carry

tion of the insane man. The company's person having contagious disease, see Paddock v. Atchison, T. & S. F. R. Co. 4 L. R. A. 231. agent agreed, however, to transport him in

the cab of a freight car due shortly there- | transportation or ejected. The payment of after, which offer was declined on the ground fare and the possession of a ticket do not rethat that train did not make connection at quire the carrier to transport those who are Macon, the point it was necessary to go to noisy or boisterous, or who threaten the safein order to reach Milledgeville. There was ty of, or occasion inconvenience to, others evidence that, after the refusal to transport, on the train. But in the case of unfortuthe passage money was tendered and de- nates who are not responsible for their disclined, and that plaintiff was obliged to take orderly conduct, and who, at best, are involhis brother in a buggy across the country untary passengers, a different question is to another railroad, by which he was subse presented, calling in each case for the exerquently carried to Milledgeville. There was cise of a wise discretion. On the one hand, evidence on the part of the company that regard must be had for the safety and comthere were only two passenger coaches, in fort of other travelers, and, on the other, one of which there were ladies, and the other to the fact that in losing his mind the lunwas divided into two compartments, one atic has not lost the right to be transported. end of which was used as a smoker, all the It may be vitally important that he be taken seats of which were occupied by passengers, to a place where he can receive the attention the other end being used for colored people, and confinement rendered necessary by his and in which there was a colored woman passenger; that the general manager offered mental state. The carrier cannot absolutely to carry the insane man on the next day, if refuse transportation to insane persons, but he was then quiet, or he would carry him in it may in all cases insist that he be properthe cab of the freight train that passed for ly attended, safely guarded, and securely reMacon a few hours later on the same day. strained. And even where such precautions The petition alleged that it was the usual have been taken, it is not bound to afford custom of the company to transport lunatics him, if violent, transportation in the cars and persons adjudged insane, over its line in which other travelers are being conveyed. to Macon, en route to the State Sanatorium, And while there may be cases in which the to which allegation the defendant answered convenience of other passengers should yield that it never refused to transport lunatics to the necessities of the unfortunate, the when they were quiet and not in such a con- company may decline to receive one who at dition as to render themselves dangerous the time of entering the train exhibits signs to passengers, and that it would have trans- of violence which indicate that his presence ported Josh Owens, had he not been resist- and conduct would tend to the manifest aning those attempting to put him on the cars, noyance of others. So to do would ordinarily and uttering vulgar language in a loud and be better than to receive him on the promboisterous manner, and that when the tickets were sold, prior to the arrival of the ise of his attendants that he would be quiet, train, Josh Owens appeared to be quiet. At and, on the disorder continuing, force upon the conclusion of the evidence the court the carrier the duty of deciding whether directed a verdict for the defendant, and the he should be ejected at a station where there plaintiff excepted.

might not be proper accommodations.

Where, however, it becomes essential to Mr. H. A. Hall for plaintiff in error.

transport one who, though violent and noisy, Messrs. L. F. Garrard and Longley & is not responsible for his actions, the comLongley for defendant in error.

pany is entitled to seasonable notice, in or

der that it may make proper arrangements. Lamar, J., delivered the opinion of the The action of the defendant in the present court:

case in offering transportation on a later This was a suit by one of the guards in train, whereon others would not be incomcharge of a lunatic, but it was conceded on moded, was in strict fulfilment of its double the argument here that he could not recover duty to the lunatic and the general public. if the company was justified in refusing to It could not be required to place him in the transport the lunatic, and we shall there baggage car, which was not intended for pasfore consider what was the carrier's obliga- sengers. If the attendants were unwilling tion to the insane man. The relation of car for him to be taken in the cab of the freight rier and passenger creates reciprocal duties. train, they were at least bound to give the One is bound safely to transport; the other, ' carrier an opportunity to make other ar to conform to all reasonable regulations, and rangements. so to conduct himself as not to incommode We find no authority directly in point, other passengers who have an equal right to though the following cases bear more or less a safe and comfortable passage. Those who on the question raised: Peavy v. Georgia R. so act as to be obnoxious may be refused '& Bkg. Co. $1 Ga. 485, 12 Am. St. Rep. 334, 8 S. E. 70; Atchison, T. & 8. F. R. Co. v. 32 Atl. 994; Pearson v. Duane, 4 Wall. 605, Weber, 33 Kan. 543, 52 Am. Rep. 543, 6 Pac. 18 L. ed. 447. 877; Paddocic v. Atchison, T. & S. F. R. Co. Although the ticket agent was on the jury 4 L. R. A. 231, 37 Fed. 841; Croom v. Chi- inquiring as to the lunacy of Owens, and cago, M. et St. P. R. Co. 52 Minn. 296, 18 L. had notice of his mental state, the latter was R. A. 602, 38 Am. St. Rep. 557, 53 N. W. not exhibiting any signs of violence when 1128; Louisville, C. & L. R. Co. v. Sullivan, the ticket was sold; and, though the com81 Ky. 624, 50 Ain. Rep. 186; Willetts v. pany was accustomed to convey persons inBuffalo & R. R. Co. 14 Barb. 585; Meyer v. sane, it was not bound to admit to its cars St. Louis, 1. M. & 8. R. Co. 4 C. C. A. one boisterous, cursing, and using obscene 221, 10 C. 8. App. 677, 54 Fed. 116; Pitts- language at the time. burgh R. Co. v. Vandyne, 57 Ind. 576, 26 There was no error of law committed, Am. Rep. 68; Lemont v. Washington & G. R. and the verdict was demanded by the eviCo. 1 Mackey, 180, 47 Am. Rep. 238; Vin- dence. ton v. Middlesex R. Co. 11 Allen, 304, 87 Judgment affirmed. Am. Dec. 714; Robinson v. Rockland, T. & C. Street R. Co. 87 Me. 387, 29 L. R. A. 530, All the Justices concur.



LAKE ERIE & WESTERN RAILROAD parties, spread upon the minutes of the court, COMPANY et al., Appts.,

and copied into the transcript by the clerk

his own motion without authority.

7. Objection to the giving or refusing Frank H. HOLLAND.

of instructions found in the record can

not be considered by the supreme court, where (......Ind......)

the record affirmatively shows that all the

instructions given are not in it. 1. The signing of a special contract limiting a carrier's liability does not

(November 24, 1903.) prevent the shipper from relying on the conmon-law duty of the carrier, where he receives no consideration for a waiver of such liabil

of the Superior Court for Marion Counity, and was given no choice of a contract imposing it.

ly in plaintiff's favor in an action brought 2. A carrier cannot absolve itself from to recover damages for injuries to live stock

its duty to furnish safe cars by exact while in defendants' possession for transing a contract requiring the shipper to in- portation. Affirmed. spect and select his car, where the shipper The facts are stated in the opinion. is induced to take the risk by safe, but false,

Messrs. John B. Cockrum and Miller, appearances, while the carrier knows that the car selected is unsafe.

Elam, & Fesler for appellants. 3. Failure of a shipper to comply with Messrs. Barrett, Brown, Bamberger, his agreement furnish

& Feibleman for appellee. to feed, water, and care for his live stock in transit will not relieve the carrier from Hadley, J., delivered the opinion of the liability for injury caused by their falling court: into a hole in the car floor due to its deca yed,

Appellee, at Kokomo, Indiana, delivered weak, and unsafe condition. 4. A right of action against a carrier to the Lake Erie & Western Railroad Com

for injury to live stock in transit pany, and associate public carriers, 20 cannot be said to be founded on a special horses, to be transported to the Union Stock contract because such contract is set out in Yards, in the city of Indianapolis. A writ. the complaint, if additional facts are al leged showing that the contract was invalid.

ten and printed bill of lading was executed 5. Liability on the part of the carrier by the parties, and the stipulated freight

is shown by a complaint alleging delivery paid by appellee. The animals were unacof horses to a public carrier for transporta companied by an attendant, and on the jour. tion, payment of freight, the furnishing of ney a hole 8 by 14 inches was broken in an unsuitable car, and injury and damage the bottom of the car, through which 10 of

thereby. 6. The supreme court has no authority the horses dropped some of their feet, and

to heed instructions requested by the were injured, for which damage is claimed



NOTE.-For other cases in this series as to 48 L. R. A. 175; and Chicago, B. & Q. R. Co. duty of carrier to furnish proper cars for live v. Williams, 55 L. R. A. 289. stock, see Coupland v. Housatonic R. Co. 15 L. As to right of carrier to limit common-law liaR. A. 534 ; Betts v. Chicago, R. I. & P. R. Co.bility for negligence, see Parker v. Atlantic Coast 26 L. R. A. 248; Illinois C. R. Co. v. Harris, | Line R. Co. ante, 827, and footnote thereto.

by appellee. The complaint is in three par- carrier, and thereby receiving the security agraphs. The first counts upon the common- of the liability of said carrier, but has vollaw liability of appellants as an insurer of untarily decided to ship the same under this the safe delivery of the property at the point contract at the reduced rate of freight above of destination. To the first paragraph of mentioned.” the complaint, appellants filed a general Appellee was to send an attendant with denial. The second, in substance, charges the horses, to feed, water, and care for them the public character of appellants, and that while in transit. The complaint avers that at the time of the shipment, and for a long appellee, being thus obliged to execute said time theretofore, the appellants had one, and contract to secure the transportation of his only one, rate of freight for the transporta- horses, signed it, and paid the stipulated tion of horses in car-load lots from Kokomo freight, and appellants thereupon took sole to Indianapolis, to wit, il cents per 100 possession of the animals, and undertook to pounds, and had only one form of contract transport them to Indianapolis; that alfor the transportation of such animals; though it was stated in said contract that that appellee applied to appellants' agent the plaintiff had the option of choosing beat Kokomo to ship a car load of horses from tween two rates of freight,—the higher furthat place to Indianapolis, and, before ap- nishing a higher degree of security, and the pellants would undertake to carry them, lower a less degree, -and that he voluntarthey required appellee, as a condition prece ily elected the lower rate, the fact is that dent thereto, to enter with them into a con- no such option was offered him, nor did he tract on their printed form, a copy of which have any knowledge that he could exercise is made a part of the complaint; and so such option, nor did appellants have a schedmuch thereof as is important in this inquiry ule rate of freight for such purposes, and follows: "Limited Liability Live Stock each and every one of the exemptions from Contract. ... This agreement made liability of appellants were exacted by them this 25th day of' March, 1899, by and be as a condition to said shipment, and inserttween (appellants and appellee] Witness- ed in said contract without any consideraeth: That the said shipper has delivered to tion; that, in pursuance of the contract, apsaid carrier live stock of the kind and num- pellee loaded his horses into a car designated ber, and consigned, and destined by said by appellants; that, because of the short disshipper, as follows: ... for transpor- tance, and the time necessary, to wit, three tation from Kokomo to Indianapolis

hours, to transport the said horses to their subject to the official tariffs

and destination, they needed no food, water, or upon the following terms and conditions care en route; that while in transit a part which are admitted, and accepted, by said of the floor of the car, by reason of latent shipper as just and reasonable, viz.: That defects in its construction, and by reason said shipper is to pay freight thereon to said of being decayed and unsound, which defectcarrier at the rate of 11 cents per 100 ive and unsound condition was at the time pounds from Kokomo to Indianapolis which of the shipment known to appellants, broke is the lower published tariff rate based upon through, producing a hole 8 by 14 inches in the express condition that ..said size, by reason of which breaking of the shipper, is, at his own sole risk and expense, fioor 10 of appellee's horses fell with their to load and take care of, and to feed and feet and legs through said hole, and were water said stock while being transported, thereby injured. The third paragraph is

.. and to unload the same, and neither like the second, with the additional aversaid carrier, nor any connecting carrier, is ments that, when the appellee applied to apto be under any liability, or duty with ref- pellants' agent for a car, he was shown and erence thereto, except in the actual trans- required to choose between two cars; that portation of the same; that said shipper is one of these was wholly unfit, on account of to inspect the body of the car in which ice frozen over the floor; that appellee insaid stock is to be transported, and satisfy spected the other, and it appeared to be himself that it is sufficient and safe, and in sound and safe, and he believed it to be proper order and condition, and said car sound and fit for the carriage of his horses. rier shall not be liable on account of any loss It is further charged that appellants knew of, or injury to, said stock, happening by that the car floor was decayed, weak, and reason of any alleged insufficiency in, or de- unsound, and on account of which unsoundfective condition of the body of said car, ness the horses were injured. A demurrer

. . and F. H. Holland (appellee) here to each of the second and third paragraphs hy acknowledges that he had the option of was overruled, and the defendants answered shipping the above-described live stock at a hy general denial. Trial; verdict and judg. higher rate of freight according to the offi- ment for appellee. The rulings of the court cial tariff, classifications, and rules of said ' upon the demurrers and in overruling appel

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