Qtjarrier v. B. & O. R. R. Co.

• Decision Date: 28 October 1882
• Citation: 20 W.Va. 424
• Court: West Virginia Supreme Court
• Parties: Qtjarrier v. B. & O. R. R. Co.

20 W.Va. 424

Qtjarrier

v.B. & O. R. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted August 19, 1880

Decided October 28, 1882.

(*Snyder, Judge, Absent.)

1. The principles in P., W. & Ky. B. B. Co. v. B. & O. B. B. Co., 17 W. Va. 812, and Henen v. B. & O. B. B. Co., Rl. 881, as to removal of case, by B. & O. R, It. Co. to circuit court of the United States, again declared, (p. 427.)

2. A circuit court does not err in refusing to remove a cause to the circuit court of the United States, where no bond is filed other than an incomplete one having no penalty named therein, (p. 427.)

3. When a married woman brings an action for loss of her own property, and it does not appear upon the face of the declaration, that she is a married woman, the question of her right to maintain the action can only be raised by plea, and not by motion to exclude the evidence, (p. 428.)

4. A case in which it is decided, that on demurrer to evidence judgment was properly rendered for plaintiff, (p. 428.)

"Writ of error and supersedeas to a judgment of the municipal court of Wheeling, rendered on the 14th day of January, 1880, in an action in said court therein pending, wherein Mary D. Quarrier was plaintiff and the Baltimore and Ohio Railroad Company was defendant, allowed upon the petition of the said company.

Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the judgment complained of.

The facts of the case appear in the opinion of the Court.

*Case submitted before Judge s. took his seat on the Bench.

Daniel Lamb and Henry M. Russell for plaintiff'in error.

Caldwell $ Caldwell for defendant in error.

The Baltimore and Ohio Eailroad Company is a resident corporation of West Virginia. B. 0. R. B. Co. v. Gallahue, 12 Gratt. 655; Goshorn v. Supervisors, 1 W. Va. E, 308; Supervisors Marshall Co. v. B. 0. R. R. Co., 3 W. Ya. E. 319; State, v. B. $ 0. R. B. Co., 15 W. Va. 362; Mahany v. Kephart, 15 W. Va. E. 609; B. 0. B. B. Co. v. Wightman, 29 Gratt. 431.

Defendant in error being a married woman had a right to sue at law. Stockton v. Farley, 10 W. Va. E. 178; Duress v. Horneffer, 15 Wis. 195; Faddish v. Woollomes, 10 Kans. 89; Jones v. Jones, 19 Iowa, 236 & 243; Kramer v. Conger, 16 Iowa 437, 438; Radford v. Carwile, 13 W. Va. 660.

Johnson, President, announced the opinion of the Court:

The plaintiff brought her suit in trespass on the case on the 10th day of June, 1879, in the municipal court of Wheeling against the defendant, claiming six hundred dollars for the loss of certain clothing described in the declaration. She claimed, that the clothing was shipped from Deer Park hotel, which was owned and kept by defendant, over the defendant's road, to her home in Wheeling, and lost by said defendant. The declaration was in the usual form. The defendant demurred to the declaration and each count thereof, assigning no grounds ot demurrer; and the court seeing none overruled said demurrer and defendant entered a plea of not guilty. At the same term the defendant filed its petition praying a removal of the case to the circuit court of the United States; but the bond filed with the paper was informal and deficient having no penalty named therein. This defect however was not noticed at the time. The court refused to enter an order to remove the case; and the defendant excepted.

The defendant also demurred to the declaration, which demurrer was overrruled by the court. On the 23d day of December, 1879, the case was tried before a iury; and after the jury had heard the evidence, the defendant demurred thereto, in which demurrer the plaintiff joined; and subject to the demurrer to the evidence the jury rendered a verdict in favor of the plaintiff for five hundred and eighty-four dollars and ninety-seven cents principal and interest.

On the 14th day of January, 1880, the court having maturely considered the demurrer to evidence decided in favor ot the plaintiff and entered a judgment for the said amount of five hundred and eighty-tour dollars and ninetyseven cents damages, as assessed by the jury, with interest thereon from the 23d, day of December, 1879.

To this judgment a writ of error and supersedeas was granted.

The evidence, which is all certified, shows, that the plaintiff was a married woman, the wife of Hullihen Quarrier, and was living with her husband; that the goods lost consisted of her own personal wearing apparel; that at the time of her loss she was boarding at Deer Park hotel, which hotel was at the time owned and kept by the defendant; that the loss occurred in August, 1874; that she was, while boarding at the hotel in the habit every week of sending by the defendant's road to her home in Wheeling to her laundress a basket containing her clothing, for the purpose of having them laundried; that on the 24th of August of that year she gave her basket of clothing as usual to the porter to have it sent to Wheeling; that she sent to the office on that day, as she had been doing, for a tag to mark it, and received the tag, and put it on the basket marked, locked the basket and put it in the hands of one of the porters of the hotel, who had always taken it from her, and saw him take it out of the room; that she saw the basket put on the wagon, which was used for the purpose of carrying packages for the guests of the hotel; that her packages were sent off on this wagon and brought back on it; that she never saw the basket afterwards.. She proved the contents of the basket and testified, that they were worth the amount found by the jury. The basket was directed to H. Quarrier, Wheeling, W. Va. She says that she tried to take the testimony of the porter, whose name was King, and who took the basket away; but "they got him away." On cross-examination she said, that the tag sent her from the office, which she put on the basket, had on it, "B. & O. R. R Co., Deer Park Hotel," and was the same kind they had given heron...