mortgagee, or with the mortgagor for his benefit, nor of any original equity residing in him. "He is allowed by a rule of procedure to go directly as a creditor against the person ultimately liable, in order to avoid a circuity of action, and save the mortgagor, as the intermediate party, from being harassed for the pay ment of the debt, and then driven to seek relief over against the person who has indemnified him, and upon whom the liability will ultimately fall. The equity on which this relief depends is the right of the mortgagor against his vendee, to which he is permitted to succeed by substitut ing himself in the place of the mortgagor." Crowell v. St. Barnabas Hospital, 27 N. J. Eq. (12 C. E. Green) 655, 656; Keller v. Ashford. 133 U. S. 610, 624, 625, 10 Sup. Ct. 494, 33 L. Ed. 667. The same conclusion is reached in an able opinion by Cardwell, J., in McIlvane v. Big Stony L. Co., 105 Va. 613, 54 S. E. 473, a case very similar to the instant case, and in which the prior Virginia cases are reviewed and discussed. The following cases in this state bearing on this question are given for convenience of reference: Ross v. Milne, 12 Leigh (39 Va.) 204, 37 Am. Dec. 646; Vanmeters v. Vanmeters, 3 Grat. (44 Va.) 148; Jones v. Thomas, 21 Grat. (62 Va.) 96; Stuart v. James River & K. C. Co., 24 Grat. (65 Va.) 294; Willard v. Worsham, 76 Va. 392; Osborne v. Cabell, 77 Va. 462; Taliaferro v. Day, 82 Va. 79; Francisco v. Shelton, 85 Va. 779, 8 S. E. 789; Tatum v. Ballard, 94 Va. 370, 26 S. E. 871; Ellett v. McGhee, 94 Va. 377, 26 S. E. 874; Newberry Land Co. v. Newberry, 95 Va. 120, 27 S. E. 899; Cosmopolitan Life Ins. Co. v. Koegel, 104 Va. 619, 52 S. E. 166; Casselman v. Gordon, 118 Va. 553, 88 S. E. 58. Counsel for the defendant in error insists that the right to maintain this action at law is sustained by Cosmopolitan Life Ins. Co. v. Koegel, supra; but the facts of that case do not warrant the conclusion. In that case, the Royal Tribe of Joseph, a benefit society without stockholders, desired to go out of business as a separate entity, and to consolidate with the Cosmopolitan Life Insurance Company, and in order to effect this object and fully protect its members who were entitled to its assets it entered into an agreement with the insurance company whereby it transferred to that company all of its assets of every kind and its business and good will, and, in consideration of such transfer, the insurance company, among other things, assumed "all liabilities of the said Royal Tribe of Joseph of certificates of membership upon which death had been reported, and which were at the date of said contract unpaid." At the date of the contract, the death of Koegel, a member of the Royal Tribe of Joseph, had been reported and the policy on his life remained unpaid. An action was brought by the beneficiary against the insurance company, and the defense of want of privity was set up by the company, but the of the policy in the trial court, and that judgment was affirmed by this court. Upon this point, Cardwell, J., delivering the opinion of the court, said: "But the defendant insists that, as the plaintiff is a stranger to the consideration for which that promise and agreement was made, she cannot maintain this action, and that it could be maintained by the Royal Tribe of Joseph alone this upon the theory that there must be a privity between the plaintiff and defendant in order to render the defendant liable to an action by the plaintiff on the contract. This is undoubtedly the general rule; but it has its exceptions like many other general rules." He then proceeds to discuss the subject, and distinctly places the right of recovery on the ground of the well-established exception to the general rule, that wherever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. In such case, it is said the law creates the privity and implies the promise This exnecessary to support the action. ception is of long standing, and is as well established as the rule itself. In the Koegel Case, Cardwell, J., uses the following language: "In the one class of cases the principle is applied where it is money that the defendant in the other where the defendant has either mon has which equitably belongs to the plaintiff, and ey or property in consideration of which he has promised to pay the debt due the plaintiff by his debtor, from whom the defendant acquired such money or property, and to whom the promise was made, and in either case the law creates the privity and implies the promise necessary to support an action on the part of the plaintiff to recover his debt of the defendant." The rule and the modification thereof is well stated by Staples, J., in Jones v. Thomas, 21 Grat. (62 Va.) 96, 101, hereinbefore quoted. In the instant case there was no property or money in the hands of the grantee. The property had been sold to pay the mortgage debt, and the action was brought to recover the deficiency. The same rule is stated in 15 Ency. Pl. & Pr. 514, citing many cases. See, also, National Bank v. Grand Lodge, supra. In Baltimore & Ohio R. Co. v. Burke, 102 Va. 646, 47 S. E. 825, Keith, P., uses this language: "If the defendant has money in his possession which in good conscience he ought to pay to the part of the defendant to do his duty, and to pay plaintiff, the law will imply a promise upon the the money; and this implied promise is as effectual to create privity between the parties as an express promise would be." On the other hand, it is said that where the contract is primarily for the benefit of the parties thereto, the mere fact that a third person would be incidentally benefited does not give him a right to sue for its breach. Where the right of the creditor is derivative only, his remedy is in equity and not at law. Simson v. Brown, supra; Wil 34 L. Ed. 210; Davis v. Calloway, 30 Ind. [ The trial court refused to sustain the mo112, 95 Am. Dec. 671; Williston's Contracts, tion of the defendant to set aside the verdict 260; 15 Ency. Pl. & Pr. 516, and cases cited. and grant a new trial, and the sole question [9] Whether or not Thacker was principal involved in the appeal is whether, under the or surety for the debt, and, if surety only, rules applicable in the appellate court in whether he was released by giving time to such case (the evidence and not the facts the principal without his consent, cannot be being certified), there was sufficient evidence considered. This was a motion to dismiss to sustain the finding of the jury that the for want of jurisdiction of the subject-mat- malaria in question was caused by the stagter, and matters affecting the merits of the nant water aforesaid. On this question, recase cannot be considered. garding the evidence as upon a demurrer thereto by the defendant, the following are the material facts: We are of opinion that a court of law is without jurisdiction in the premises, and for that reason the judgment of the circuit court must be reversed, but without prejudice to the appellee to assert any claim it may have in a court of equity. 1. RAILROADS 114(4) DAMAGE FROM MAINTENANCE PROXIMATE CAUSE DAMAGES BY MALARIA CAUSED BY MOSQUITOES. In an action against a railroad for damages caused by the illness of plaintiff and family from malaria, alleged to have been occasioned by stagnant water in an old canal bed, which it was the railroad's duty to drain, evidence held insufficient to establish that the breeding place of the mosquitoes which caused the malaria was the old canal bed. 2. EVIDENCE 54- PRESUMPTIONS - INFERENCE FROM PRESUMPTION. Where an inference of fact was not proved as a fact in the case, and, in the very nature of the subject, could not by any possibility have been proved, the rule that an inference cannot be drawn from a presumption, but must be founded upon some fact legally established, applied. TO DRAIN BED OF CANAL. A railroad's duty under an act of the Legislature, to drain the bed of an old canal, so as not to leave stagnant water endangering health from malaria caused by mosquitoes, can be enforced by mandamus. Error to Circuit Court, Fluvanna County. Action by J. N. Catlett against the Chesapeake & Ohio Railway Company. To review a judgment for plaintiff, defendant brings error. Judgment reversed, and new trial granted. The defendant in error (hereinafter referred to as plaintiff) recovered a verdict in the court below against the plaintiff in error (hereinafter referred to as defendant) for damages during the period covered by the suit, to wit, from June 1, 1915, to March 25, 1916, caused by the illness of the plaintiff and family from malaria, which the plaintiff alleges was occasioned by stagnant water in the old canal bed which an act of assembly of Virginia made it the duty of the defendant to so drain as not to leave stagnant water by which the health of the citizens along the line of said canal might be injuriously affected. The Facts. By act of assembly (Acts 1878-79, p. 118) the Legislature of Virginia authorized the Richmond & Alleghany Railroad Company to purchase the old James River and Kanawha Canal, and to construct a railroad along its tine and abandon the canal, but with the following provision and condition: "The said * * * railroad company shall, as fast as they abandon the said canal, so drain the same as not to leave stagnant water, by which the health of the citizens along the line of said canal might be injuriously affected." The defendant is the successor in title of the Richmond & Alleghany Railroad Company, and admits its duty to keep the bed of the old canal drained as required by said statute. The plaintiff and family occupied a storehouse and dwelling combined between 25 and 30 feet from the old canal bed (according to one witness for plaintiff) from early in May, 1914, until this suit was instituted, March 25, 1916. This house was also located between two branches, both of which were about the same distance from the house, to wit (as one witness stated it most extremely for the plaintiff) about "20 steps" from it. One of these branches started from a spring in the side of the hill about the latter distance from the house. This stream ran through a the side of the public road near the spring, small pool or watering place for horses by about as large as a "washtub," thence on in front of plaintiff's house into the other branch. The other of these branches, which was larger, was also a spring branch, coming down from the hills near by with a considerable fall, thence, after reaching the low ground and being joined by the firstnamed branch, it passed around along at the back of plaintiff's house into the old canal bed. The privy of plaintiff was near the bank of the latter branch about 50 yards from the rear of his dwelling (according to one witness for plaintiff) and drained into the branch. There was not much fall in the larger branch as it passed near plaintiff's house, and while the water in it was fresh it moved in this locality sluggishly, with still water along its margin in places; and where the public road which passed in front of plaintiff's house crossed this stream, about 50 yards from the house, the mud thrown up from ruts cut by wagon wheels in passing over the road had a tendency to obstruct the stream, and following much rainfall the water would stand at this place, and (as the wife of plaintiff testified) would "become a sheet of water, and people in the community would complain of it in going to the depot and getting their traffic out. The whole road would become a sheet of water. * * The plaintiff himself testified, however, and so did his wife at another point in her testimony, that they could by clearing off the mud from the road prevent the last-named ponding of the water, and that the custom was invariably to do so when they found the water was ponding there. The water in the bed of the canal near plaintiff's house was not well drained off, and was very stagnant, and of much greater extent of surface in 1914 and 1915 than the still water in said branches, horse-watering place and spring near plaintiff's house. In the year 1913 plaintiff and family lived in a different house from that above referred to, but only about "twenty steps" therefrom, and hence lived then in practically the same locality as in 1914 and 1915. In 1913 the canal bed above referred to was kept well drained by defendant, and there were no mosquitoes present and no malaria in plaintiff's family. The evidence is silent as to whether there was much or little wet weather that year. In 1914 such canal bed was not well drained, the ditch of defendant draining it being partly filled by washings from the hills brought down by the larger branch above named, and there was very little stagnant water which accumulated in such canal bed, but there were "millions of mosquitoes" present, and yet there was no malaria in plaintiff's family. There was not much wet weather that year. In 1915 such canal bed was not well drained, the ditch aforesaid was more filled by the washings aforesaid, and there was stagnant water of greater quantity and surface than in 1914 which accumulated in such canal bed; there were "millions of mosquitoes" present, and there was the malaria in plaintiff's family. There was a great deal of wet weather that year. The plaintiff's wife and daughter were taken sick with malaria in the latter part of July or first part of August, 1915, and did not recover until cold weather in December of that year. Defendant opened its ditches and well drained the canal bed referred to in August or September, 1915, and the canal was kept well drained by defendant from that time to the time of the trial of the case in the court below. Plaintiff and his son were taken sick with malaria, in about three weeks of each other, about October, 1915, and recovered by the At the time of the trial of the case in the court below, on June 27 and 28, 1916, there had been no return of malaria in any of plaintiff's family since their recovery from their sickness in December, 1915. It is conceded by counsel for plaintiff as fully established by the evidence "that malaria is transmitted by the anopheles mosquito; [that] this mosquito must first derive the malarial germ from some person affected with malaria, and then transmit it by inoculation to some other person." There is another species of mosquito, the culex, which the evidence shows does not transmit or cause malaria. Dr. Harris, one of the physicians who attended plaintiff's family and also prescribed for plaintiff during their said illness, had examined the old canal bed aforesaid, but had not examined the spring and branches. He testified among the witnesses for plaintiff, and was asked a hypothetical question which covered the condition of the water in the spring and branches. The question concluded as follows: "Given those conditions and the conditions that you saw in the canal bed, where would you say this malaria Mr. Catlett and his family had originated?" His answer was as follows: "That is a hard question for anybody to an swer, because the malarial mosquito may breed anywhere, might travel most any distance; and it depends upon how long it might be between rains and between the stagnant water on the but from all the conditions I saw, not seeing branch or around the spring or anywhere else; the branch, I consider they would breed in the most favorable place, in the canal. That would be the best answer I can give." The following should also be quoted from the continuation of the testimony of this witness: "By Mr. Moon: "Q. Is it your opinion from what you saw there that this malaria came from the canal? "A. From what I saw. On cross-examination : "By Mr. Leake: "Q. Isn't the still side pools of small streams, or swampy pools at the margin of ponds, or stagnant water in ditches, or beds of old canals, or the still water at the sides of a spring, and occasionally, though rarely, in old horse troughsisn't that condition favorable for the produc tion of the anopheles mosquito; or standing rain water, either standing on the ground or in receptacles? "A. Yes, sir. "Q. In fact, anywhere water stands? "A. Yes, sir; anywhere water stands will breed mosquitoes. "Q. So that if, around a house such as Mr. Catlett's, there were conditions such as that in detail as you have just stated would be favorthe old canal bed, would it be possible for you able to the breeding of mosquitoes, other than or anybody else to say which mosquito bit Mr. Catlett and his family? "A. No, sir." Redirect examination: "By Mr. Moon: detailed in my former hypothetical question. "Q. Doctor, supposing the conditions, which I around the spring and along those branches 936 on the one hand, and the conditions that you said in the canal bed on the other, which would you say would be the more favorable for the production of mosquitoes? "A. I would consider the canal the most favorable place." It is shown by the evidence of the physician who testified for the defendant that: "It is not the number of mosquitoes that gives a man malaria; it is not the bites you get. One will do it; of course, two will do it a little better if both of them are loaded with the malarial parasite." der this rule. dence rule does not dispense with the requirement that there must be some evidence which has some logical probative value to establish a fact, before that fact can be even considered as a possible hypothesis predicated upon the evidence-a fortiori, before it can be considered as the more probable hy. pothesis from the evidence. In other words, the preponderance of the evidence rule can operate only upon hypotheses to establish which there is some evidence in the case of And there is no conflict in this testimony some logical probative value. No other hywith any evidence introduced for the plain-pothesis can be for a moment considered unThe instant it is discovered tiff. It is in accord with the evidence for the that there is no evidence of any logical probaplaintiff. tive value to establish a given or suggested hypothesis, that instant such hypothesis must be discarded from consideration as a fact. So, in the instant case, as to the hypothesis that the breeding place of the mosquitoes which were the cause of the malaria complained of was the old canal bed aforesaid. As appears from the above statement of facts and summary of facts, the evidence in the instant case has no logical probative value to establish the fact that the breeding place of the offending mosquitoes was the old canal Summary of Facts. The evidence for the plaintiff in this case does not go beyond proving by a preponderance of it that the water in the canal bed in 1915, prior to its drainage in August or September of that year, was the most favorable place for the production of mosquitoes. Such evidence also proves that the water in other places near by was favorable at such time for the production of a sufficient number of mosquitoes to have caused the malaria complained of, and that no logical conclusion of the whereabouts of the breeding place of bed. At most, the evidence cannot go beyond the mosquitoes which caused the malaria establishing that the mosquitoes which causcomplained of can be drawn from the facted the malaria complained of were probably that one place bred more than another. The evidence establishes the further fact that the year 1915 was one of unusually wet weather. D. H. & Walter Leake and Henry Taylor, Jr., all of Richmond, for plaintiff in error. Moon & Pitts, of Scottsville, for defendant in error. SIMS, J. (after stating the facts as above). The instant case turns upon the question: (1) Is there any probative evidence in the case tending to establish the fact that the breeding place of the mosquitoes which were the cause of the malaria complained of was the old canal bed aforesaid? The question must be answered in the negative. A fact cannot be established, whether by direct (testimonial) or circumstantial evidence, unless there is some evidence which has some logical probative value to establish the fact. 1 Wigmore on Ev. §§ 20, 31, et seq. [1] It is very true that in civil cases the reasoning to establish a fact is not required to measure up to the exclusion of every other hypothesis consistent with the evidence; and it is required only that the fact considered as established be the more probable hypothesis from the evidence with reference to other possible hypotheses predicated upon the evidence that is to say, in civil cases, a fact may be established by a preponderance only of the evidence. Woods' Adm'x v. Southern Ry. Co., 104 Va. 650, 52 S. E. 371, and almost innumerable other cases which might bred either in the water of the old canal bed (for which the defendant was responsible) or in the water of other places near by (for which the defendant was not responsible). Now, as bearing on the question whether it is more probable that the mosquitoes bred in the water of the old canal caused the ma laria, or those bred in the other nearby plac es, we have only the isolated datum or the sole fact that more mosquitoes were bred in the former place. If the number of the mosquitoes bred were a determining factor on this question, we would, of course, conclude that the mosquitoes bred in the former place were the more probable cause of the malaria. But we have the direct evidence in the instant case, above mentioned, that the number of the mosquitoes bred is not a determining factor on such question. We have, moreover, the obvious fact that evidence of mere numbers of mosquitoes bred in a given place can have no probative value whatsoever to identify the breeding place of the offending mosquitoes, when there were other places, equally probable as places of origin, where mosquitoes as shown by the evidence were probably bred in sufficient numbers to have caused the malaria. And it inheres in the very nature of the case that this is so. It is necessarily so because the identity of the breeding place of the insects in question is lost in the obscurity of their own utter lack of known or ascertainable marks or characteristics (if any such exist) by which those bred in one place may by any possibility be distinguished from those bred in another place, when we have relied on to produce it are absent, is fatal to the argument. In 1913, it is true, the mosquitoes and the stagnant water in the canal were not present, and the phenomenon of the malaria in plaintiff's family did not occur; but in 1914 this data, to the extent of of different places from which it was equally as possible and probable that they came in sufficient numbers to have caused the malaria. There is, therefore, no evidence in the instant case to show that the one breeding place was more probable than the other of the mosquitoes which caused the malaria | producing "millions of mosquitoes," were complained of. [2] In other words, in the instant case, the verdict of the jury in finding the fact in question was necessarily based upon "conjecture, guess or random judgment upon mere supposition." C. & O. Ry. Co. v. Heath, 103 Va. 64, 66, 48 S. E. 508. The inference that the mosquitoes which caused the malaria complained of were bred in the bed of the old canal was not proved as a fact in the case, and in the very nature of the subject under the circumstances of the instant case could not by any possibility have been so proved. In such case, the rule that "an inference cannot be drawn from a presumption, but must be founded upon some fact legally established," applies. See C. & O. Ry. Co. v. Ware, 95 S. E. 183, in which the opinion of this court is handed down at the present term. What has been said above is crystallized and stated in another way in the following rule referred to by Buchanan, J., in delivering the opinion of this court in N. & W. Ry. Co. v. Poole, 100 Va. 148, at pages 153, 154, 40 S. E. 627, at page 629: "Where damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other; since the plaintiff is bound to make out his case by the preponderance of the evidence." present, and the phenomenon of the malaria did not occur. Again, in 1915, the data of the stagnant water in the canal and the "millions of mosquitoes" were present and the phenomenon in question did occur; but this single instance is offset by the experience aforesaid of 1914, when, with the same data aforesaid then present, such phenomenon did not occur. And as to the disappearance of the mosquitoes and the malaria when and since the canal was well drained, the position of counsel for plaintiff is not precisely accurate. The plaintiff and his son were not taken sick with malaria until after the canal was well drained in August or September, 1915, and at such a length of time after that time that it would seem to be indicated by a preponderance of the evidence that they were not infected by mosquitoes from the canal bed, but from mosquitoes bred at some other place. Certainly this must have been so if all the mosquitoes from the canal bed disappeared as soon as it was drained, which was in August or September, 1915. Here again in the absence of the data relied on by plaintiff to produce the phenomenon, we find that the phenomenon occurs. And as to the nonrecurrence of the sickness from malaria since the recovery of plaintiff and his family, this was brought out in evidence on the trial in June, 1916. The malarial illness complained of in 1915 did not begin until the latter part of July or first of August. No logical argument, therefore, could be based on its nonrécurrence when only the period of June in 1916 had been reached. Counsel for the plaintiff make use of the arguments known in logic as the "method of agreement" and "method of difference," and Moreover, the argument of counsel for urge with much force and ability that in 1913 plaintiff ignores the further data furnished when the canal bed was kept well drained, by the evidence that there was unusually wet there were no mosquitoes and no malaria; | weather in 1915 when the malaria in question that in 1914, cotemporaneously with stagnant occurred, which probably introduces the preswater in the canal bed, "millions of mosqui-ence or absence of unusually wet weather toes appeared and this continued throughout conditions into the problem of ascertaining the remainder of the year 1914 and the year 1915, until this stagnant water was removed by appellant by drainage, and as soon as the stagnant water in the canal was removed, the mosquitoes disappeared," and that appellee and his family "as soon as the stagnant water was drained from the canal bed and the mosquitoes disappeared re covered from their malaria, and have had none since." But the infirmity of these meth ods of argument, as justly observed and in substance expressed by Mr. Wigmore in his learned and valuable work on Evidence, lies in this, that the failure of the phenomenon to occur in any single instance, when the data relied on to produce it are present, or its oc the more probable cause of the malaria. However, the evidence is meager on this subject, as it is upon the subject of other data necessarily entering into the problem, and is plainly insufficient to warrant any reliable conclusion based upon evidence of facts. As the physician who testified as an expert witness for the plaintiff, in effect, frankly said, concerning the instant case as disclosed by all the evidence for plaintiff, it was impossible for the witness or any one else to say whether the mosquitoes, which bit Mr. Catlett and his family, and caused the malaria complained of, were bred in the old canal bed or elsewhere; so we are compelled to say from this evidence. |