have the same force and effect as if a formal [ (119 Va. 605) KAIN v. ASHWORTH. (Supreme Court of Appeals of Virginia. 11, 1916.) [1] A part of the cause of action arose in Washington county. The defendant, Kain, was a resident of the city of Roanoke, and was served there with a copy of the notice. Before pleading to the merits, counsel for the defendant entered a special appearance, and moved the court to quash the service and return thereof indorsed on the notice Sept. and to dismiss the proceeding, for the reason that the defendant was not sued with any person residing in the county of Washington, and that the notice was issued against him alone, and served upon him outside of the county. The court overruled this motion and its action in doing so is the basis of the sole assignment of error. 1. VENUE 14-ON MOTION-JURISDICTION -CAUSE OF ACTION-STATUTE. Under Code 1904, § 3211, as amended by Acts 1914, c. 18, to provide that any person entitled to recover money in any action at law may, on motion before any court which would have jurisdiction of such action, obtain a judgment after 15 days' notice, and section 3215, providing that an action may be brought in any county wherein the cause of action or any part thereof arose, the circuit court of a county in which part of the cause of action arose had jurisdiction of a proceeding by motion, although the defendant did not reside therein. [Ed. Note.-For other cases, see Venue, Cent. Dig. §§ 21, 27; Dec. Dig. 14.] 2. JUDGMENT 184-ON MOTION-NOTICEPLACE OF SERVICE-STATUTE. Under such provisions, not prescribing the method of serving notice or process, the plaintiff properly followed Code 1904, § 3207, providing for the serving of notices and authorizing the service to be made anywhere in the state. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 346; Dec. Dig. 184.] 3. STATUTES 190-CONSTRUCTION-MEAN ING OF Words. When the words of a statute are plain and unambiguous, the mere fact that the statute leads to results for which no good reasons can be assigned is not sufficient to justify the court in rejecting its plain meaning. Section 3211, as amended by the act of 1914, so far as pertinent here, reads as follows: "Any person entitled to recover money, damages or a penalty in an action at law may, jurisdiction of such action, obtain judgment on motion before any court which would have for such money, damages or penalty after fifteen days' notice," etc. Acts 1914, p. 28. Since a part of the cause of action arose in Washington county, the circuit court of that county is expressly given jurisdiction by section 3215, which provides that: "An action may be brought in any county or corporation wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein." [2] It is too plain to admit of argument that under the terms of the provisions above quoted, the jurisdiction of the circuit court of Washington county, regardless of Kain's residence in Roanoke, was open to Ashworth for either a motion or an action. The proceeding, in either case, would have been instituted in a court having jurisdicCourts cannot be controlled in their decisions tion of the cause. The power of the court by a consideration of hardships that may re- to try the cause would depend, of course. sult in individual cases from the enforcement as in every case, upon notice to or process of the law as it is written. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 266, 269; Dec. Dig. 190.] 4. STATUTES 181(2)-CONSTRUCTION-CONSIDERATIONS OF HARDSHIPS. any restrictions upon, or undertakes in any way to prescribe, the method of serving notice or process. If, therefore, Ashworth had [Ed. Note.-For other cases, see Statutes, on the defendant. Neither section 3211, as Cent. Dig. §§ 259, 263; Dec. Dig. 181(2).] amended in 1914, nor section 3215, places Error to Circuit Court, Washington County. Proceeding by motion under the Code by J. S. Ashworth against T. J. Kain. Judgment for plaintiff, and defendant brings writ of error. Affirmed. Jackson & Henson, of Roanoke, and J. J. Stuart, of Abingdon, for plaintiff in error. White, Penn, Hutton & Penn, of Abingdon, for defendant in error. brought an action at law in Washington county, as was fully warranted by section 3215, he would have been restricted by the effect of section 3220 (the process section for technical actions at law) to a service of process on Kain in the county of Washington. But, having proceeded by motion, he followed, naturally and properly, the proviKELLY, J. This is a proceeding by mo- sions of section 3207, which is the section tion under section 3211 of the Code, as providing for serving notices, and which amended by the act of February 27, 1914, clearly authorizes the service to be made brought in the circuit court of Washington anywhere within the state. And the fact county by J. S. Ashworth against T. J. Kain, that in the former instance a timely objecto recover money alleged to be due upon an tion to the process would have, for the time account. There was a verdict for the plain- being, obstructed (not necessarily defeated) tiff, and thereupon the court rendered the the action, while in the latter instance it judgment to which this writ of error was did not have that effect, is not due to lack awarded. of jurisdiction in the court, but to a restric tion upon service of process under section ( The only way by which this court could 3220, which is not imposed upon service of sustain the contention of the defendant notice under 3207. would be to ingraft upon section 3207, or 3211, or 3215, or 3220, a judicial amendment. This is not within our province, but is within the province of the General Assembly, and that body in 1916 made the amendment, selecting section 3211 for the purpose, and writing into it the proviso which we cannot read into it, and which is: The meaning and effect of the foregoing provisions seem to us perfectly plain, and to leave no room for resort to technical rules of construction as to the intent of the Legislature. [3] It is urged upon us that the purpose of the amendment of section 3211 by the act of 1914 was merely to make motions and actions coextensive in their practical use, and we have been cited to a number of authorities bearing upon the perfectly well-settled rule that, in construing statutes, the purpose and intent of the lawmakers must be carried out. It may be conceded that the effect sought to be ascribed to the amendment is in accordance with what the Legislature would have been expected to have in contemplation. But a primary and fundamental rule, which we think controls this case, is that when the words of an enactment are plain and unambiguous, the courts cannot speculate as to what the Legislature might reasonably have been expected to enact, but must accept and apply the plain meaning of the words which have been employed. "That when the notice of motion is brought under section 3215 of the Code of Virginia, the same shall not be served in any other county or corporation except in such cases as are specified in section 3220 of the Code." With this amendment it is plain that in cases like the one in hand the notice cannot be served out of the county. Without this amendment it seems equally clear that the notice could be served anywhere in the state. With or without the amendment, the circuit court of Washington county would have jurisdiction of the case, but could only try it after the notice had been served according to law. For the reasons stated, we are of opinion that the judgment of the lower court must be affirmed. [4] Courts cannot be controlled in their de"All rules are therefore subservient to the cisions by hardships that result in individual legislative intent; and, when this is clear from cases from the enforcement of the law as it the language used, rules of interpretation give way; the maxim being that it is not allowable is written, but it is always gratifying to feel to interpret that which has no need of interpre- that ligitants have, in fact, suffered no hardtation. Furthermore, this intention is to be ship. In the present case, after the objecgathered from the words used, unless a literal tion to the service of notice was overruled, interpretation would lead to a manifest absurdity." Lile's Notes on Statutes, p. 24, and authorities cited. The mere fact that a statute leads to re sults for which no good reasons can be assigned is not sufficient to justify the court in rejecting the plain meaning of unambiguous words. The absurdity which will justify a departure from such meaning can only be predicated of an intent and a consequent conclusion which could not be attributed to men in their right senses. State v. Hayes, 81 Mo. 574, 585; Potter v. Douglas Co., 87 Mo. 239. It will not be contended that it was not perfectly competent for the Legislature so to provide as that notice of any or all motions under section 3211 might be sent to any county in the state, regardless of where the proceeding should be started, just as had already been done as to process in actions of tort and certain other cases. The courts cannot, where the language is clear, add to a statute cases not embraced therein, or take from it cases which are so embraced, merely because no good reason can be assigned why they should be omitted in the one instance, or included in the other. See Floyd v. Harding, 28 Grat. (69 Va.) 401, 405; Denn v. Reid, 10 Pet. 526, 9 L. Ed. 519; 26 Am. & Eng. Ency. L. (2d Ed.) 601; 36 Cyc. 1113; Black on Interp. Laws, § 31, pp. 57-8. the defendant appeared generally, filed several pleas in bar, and successfully defended the motion as to more than one-half of the sum sued for; and he does not here complain of any alleged error of the court except the one which we have discussed. Affirmed. (119 Va. 856) WEEKLEY v. TAYLOR & HAYNES. (Supreme Court of Appeals of Virginia. Sept. 11, 1916.) INJUNCTION 189-PROSECUTION OF ACTION purchase-money note for $700, given under a Decree perpetually enjoining collection of a contract to buy land for that price, the note to be paid in full if pending ejectment action but $350 to be paid in any event, was erroneous, against grantor terminated favorably to him, but it should provide for the payment of the latter sum and enjoin enforcement of claim for the balance until further order of court. [Ed. Note. For other cases, see Injunction, Cent. Dig. 8 409; Dec. Dig. 189.] Appeal from Circuit Court, Smyth County. Suit in equity by Taylor & Haynes against Mary E. Weekley to enjoin the prosecution of an action, with cross-bill by defendant. Decree for complainant, and defendant appeals. Reversed, and decree entered which the lower court should have entered, and cause remanded. L. P. Summers, of Abingdon, for appel-rer, answer, and cross-bill. It is not neceslant. White, Penn & Penn and Hutton & sary to discuss the demurrer. The answer, Hutton, all of Abingdon, for appellees. KELLY, J. This is an appeal from a decree perpetually enjoining the prosecution of an action at law brought upon a purchase money note. among other things, denies the interpretation of the contract of sale as contended for in the original bill, denies, with particularity and with considerable affirmative allegation, that the lands are embraced in the said action of ejectment, and denies the insolvency of defendant, but admits that she is a resident of the state of Indiana. The defend The essential facts are these: The appellant, Mary E. Weekley, by a written contract dated April 30, 1912, sold to the ap-ant further insists in her answer that she is pellees, Taylor & Haynes, two certain parcels of land. The consideration for this sale, as expressed in the contract, was $700, to be paid two years after the date thereof, with interest, and evidenced by negotiable note. The contract contained a further provision which is the chief subject of this controversy, and is as follows: "The party of the first part hereby covenants that upon the expiration of the two years above mentioned, and the payment by the parties of the second part of the sum of seven hundred dollars, with the interest thereon as stipulated, she will execute unto the parties of the second part a deed, with general warranty, conveying unto them the above-described parcels of land, and in the event the title to this be attacked, and the land be taken from the said Taylor & Haynes, then it is fully understood and agreed by the said Mary E. Weekley that the said Taylor & Haynes shall pay only $350.00 instead of amount outlined above." Pursuant to the contract, the appellees took possession of the lands, and appear to have held the same ever since. The note for the purchase money was not paid. After it became due, Mrs. Weekley brought an action at law upon it, and Taylor & Haynes thereupon instituted the present suit in equity which resulted in the perpetual injunction above mentioned. The bill, after referring to the sale, the purchase-money note, and the action at law, alleged that the lands embraced in the contract were involved in a certain pending and undetermined ejectment suit, and would probably be lost to the complainants; that the defendant, Mrs. Weekley, was a nonresident and insolvent, that complainants were willing to pay the whole of the purchase money if they could get a good title, or to pay $350 for a quitclaim deed and run the risk of losing the land, and that this was the true meaning of their contract, which was made with the knowledge of the parties that the ejectment suit aforesaid was threatened; that complainants were willing to reconvey the lands to the defendant, with the improvements which they had made thereon, and which they averred would more than pay for the rent during their occupancy; and that they ought not to be required to pay $350 unconditionally and $350 if the title was ultimately sustained. The bill was not verified by affidavit, but no point seems to have been made of this oversight, and a temporary injunction was awarded thereon in vacation. entitled to specific performance of the contract, tenders a deed for the lands, and prays that the answer be treated as a cross-bill, and that specific performance and general Answer unrelief be decreed in her favor. the answer and cross-bill itself was not verider oath to the cross-bill was waived, and fied. Taylor & Haynes answered the cross-bill, denying generally its averments, and repeating, in substance, the allegations of the original bill. They especially repeat that they are willing to pay $700 for the land if the title is good, but that, as the title is in litigation, Mrs. Weekley should be required either to take $350 and permit them to litigate the title without further obligation to her, or she should be required to abide the end of the litigation in ejectment and then receive $700 if the title is sustained, and nothing if the title is defeated. This answer was verified by affidavit, and there was a general replication thereto. Upon the proceedings and record as substantially set out above, with certain exhibits not necessary to mention, the cause was submitted, and the court entered the decree appealed from, which adjudged and ordered: "That the injunction heretofore granted the complainants in this cause be perpetuated and the defendant be perpetually enjoined from prosecuting her action at law on the purchase-money note given for the lands sold by the defendant to the complainants, and that the defendant is not entitled to a specific performance of her contract of sale with the complainants for said lands. And the complainants shall recover of the defendant their costs in this behalf expended. And this cause is dismissed." The contract between the parties was a plain and simple one. The land was regarded by them as being worth $700. It was contemplated that the title might "be attacked and the land taken." In that event Mrs. Weekley was to receive and Taylor & Haynes to pay only $350, instead of $700. In other words, Mrs. Weekley was to have $350 in any event. The remaining $350 she was also to have subject only to the condition that the title should not "be attacked and the land taken from the said Taylor & Haynes." The court cannot make a new contract for these parties, which it would do if it should adopt some of the alternative propositions made in the bill and the answer to the cross-bill. These propositions are not in which the court has the power to impose in when read with an instruction that, if plaintiff connection with its enforcement. It is conceded by counsel for appellees that it was error to perpetuate the injunction, but they insist that such a decree ought to be entered as will require the appellant either to take $350 and surrender now any further claim, or to await the end of the litigation as to the title and then receive either $700 or nothing, according to the fate of the title. We cannot accept this view. The decree should have placed the appellees upon terms, making any relief to them conditioned upon the payment by them to the appellant, or into court for her, of the sum of $350, with interest from the date of the note; and it should have provided further that, upon such payment, the appellant should be restrained and enjoined from attempting to collect the residue of the purchase money until the further order of the Such a decree will not only give to the appellant what she is unconditionally entitled to under her contract, but will preserve the rights of all the parties until the court can properly, and in accordance with the interpretation of the contract hereinbefore set out, enter a final order either dissolving or perpetuating the injunction. court. The decree complained of will be reversed, and this court will enter the decree which the lower court should have entered, and the cause will be remanded for further proceedings to be had in conformity with the views herein expressed. Reversed. Evidence in an action for damages for personal injury while alighting from defendant's train, by reason of the distance from the step to the ground, held to make the plaintiff's contributory negligence a question for the jury. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1385, 1402; Dec. Dig. 347(9).] 3. TRIAL 296(4, 5)-PERSONAL INJURY-INSTRUCTION-CONTRIBUTORY NEGLIGENCE. In an action for damages for personal injury while alighting from train, an instruction that, when a passenger is expressly or impliedly invited to alight at his station, and there is any danger in alighting there, the carrier's agents and servants must warn the passenger of such danger, and that otherwise the passenger may assume that the place of alighting is safe, in the exercise of reasonable care could have contributed to her injury, the carrier was not alighted without injury and by want of due care liable, notwithstanding the car stopped away from the station platform, was not reversible error, as authorizing a passenger to disregard dangers, whether obvious or not. [Ed. Note. For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. 296(4, 5).] Error to Circuit Court, Bedford County. Action by Eliza E. Tinsley against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. Harrison & Long, of Lynchburg, for plaintiff in error. Jno. L. Lee, of Lynchburg, and W. K. Allen, of Amherst, for defendant in error. KELLY, J. This is an action to recover damages for personal injuries. Eliza E. Tinsley was the plaintiff, and the Chesapeake & Ohio Railway Company was the defendant in the court below, and they will be so designated here. This is the second appearance of the case upon our docket. At the former hearing a judgment for the plaintiff was reversed for the error of the trial court in overruling a demurrer to the declaration, and the cause was remanded for a new trial. 116 Va. 600, 82 S. E. 732. At the second trial the plaintiff amended her declaration by striking out the faulty counts, and, the case being tried upon the declaration as amended, there was again a verdict for the plaintiff, upon which the circuit court rendered the judgment now before us. Briefly stated, the declaration, which, except as to the counts stricken out as aforesaid, was held by this court in its previous opinion herein to state a good cause of action, alleges that the plaintiff was a passenger on defendant's train and received the injuries complained of by the negligence of its servants in stopping the train at a place which required her to alight at a point short of the regular landing provided for passengers, and in so doing to step down further than the ordinary distance, in a rough and uneven place, at the invitation of, but without proper assistance from, the conductor. We are asked to reverse the judgment in the present case upon two grounds: First, that an erroneous instruction was given to the jury; and, second, that the verdict was contrary to the law and the evidence. These grounds will be considered in their inverse order. [1, 2] Upon the part of the plaintiff there was evidence which either showed, or materially tended to show, that the plaintiff was a passenger on the defendant's train, with a ticket for a station on its line known as Major, where there was a gravel platform, the top of which was flush with the top of the rails, provided for the use of passengers in alighting from trains; that the plaintiff was an old lady, about 70 years of age, and weighing about 220 pounds; that the train arrived at Major "a little late in the eveping," and she could not see very well; that the train stopped there in such a position as that the steps of the car from which she had to descend were not at the platform, but were several feet east of it; that the ground below the steps was rocky and uneven, and was 30 or 31 inches from the bottom step; that this distance was 11 or 12 inches further than from the bottom of the step to the regular landing or platform; that after the station had been called and the train had stopped, she walked out of the car and down to the bottom step, holding to the handrail; that the conductor, who was then standing down on the ground, reached up and took her by the arm, and that she stepped or jumped to the ground; that the conductor either did not or could not materially assist her; that, “not thinking it was so far," she struck the ground with great force and received a violent shock; that prior to this time, except for such allowance as was to be made for her size and age, she had been active and in good health; and that since this occurrence, and as a result of it, she has been, and will perhaps continue while she lives, in a most distressing state of health. It is urged upon us that the evidence developed by the defendant, and some of the facts and circumstances disclosed by that of the plaintiff, greatly discredit the plaintiff's claim, both as to the circumstances attending the alleged injury, and as to the extent and seriousness of it. It is not within our province or power to deal with the weight of the evidence or the credibility of the witnesses. There was a sharp and a truly deplorable conflict in the evidence. The jury saw fit to sustain the plaintiff's contention, and, as there was evidence to support it, their verdict upon the facts cannot be disturbed. Indeed, we do not understand counsel for defendant as contending that, upon this branch of the case, this court can interfere with the judgment, unless it can do so upon the ground that the plaintiff was guilty of contributory negligence. Under our view of the evidence as to her conduct and the situation at the time, we cannot say, as a matter of law, that such negligence upon her part was established. It is true that by a deliberate and careful inspection she probably could have discovered that she was about to alight at an unsuitable place and in an unsafe manner, but departing from a passenger train is usually of necessity a hurried act, and it is to be remembered that the station had been called, the train had stopped for the station, and the conductor was, by his manner and attitude, inviting her to alight. She knew there was a gravel platform at Major upon which passengers usually alighted. She said that it getting a little late, that she could not see very well, and that she was not expecting the distance to be so great. Under these circumstances, we are unable to hold that it was not for the jury to say whether she was guilty of contributory negligence in leaving the train at the point and in the manner described. This question, like that of the primary negligence of the defendant, was submitted to the jury upon proper instructions, and their finding thereon is conclusive upon us. [3] Coming now to the only other assignment of error, it is insisted that the court erred in giving to the jury the following instruction: "The court instructs the jury that when a passenger is invited by the defendant's conductor, expressly or impliedly, to get off the train at the station to which the passenger has a ticket, and there is any danger attending the passenger alighting at the place, it is the duty of the agents and servants of the railway company in charge of the train to warn the passenger of such danger in alighting, and the passenger has a right to rely and assume that the place of alighting is free from danger in the absence of its passengers." such warning, when the train stops to deliver The objection urged to this instruction is that it authorizes a passenger in reliance upon the carrier to disregard dangers, whether they are obvious or not. If this had been the only instruction given, there would be, in the conflicting state of the evidence, some force in the objection relied upon, but the jury were further told that they must consider all the instructions of the court in their relation to each other, and among the several instructions was the following: "The court instructs the jury that, if they the exercise of reasonable care for her own believe from the evidence that the plaintiff, by safety, could have alighted without injury from the defendant's train at Major on the 15th of February, 1913, and failed to exercise such care find for the defendant, notwithstanding they and so contributed to her own injury, they must may believe from the evidence that the car from which she alighted was stopped short of the station platform." Taking these two instructions together, there was no reversible error in the one here attacked. These instructions were given on the former trial, and the same objection which is now urged to the first one was made before this court and in effect overruled upon the hearing of the former writ of error. Upon the whole case we are of opinion that the judgment must be affirmed. Affirmed. |