Action
by W. N. Reynolds against the Adams Express Company. Judgment
for plaintiff, and defendant appeals. Affirmed.
Requirement
in contract of shipment of horse for written notice of claim
within 30 days is waived, where carrier's agents have
actual notice of accident and circumstances, and the carrier
sends a veterinarian.
The
action was to recover for injuries to a racing mare, shipped
by express over a route of defendant company from Winchester
Va., to Hanover, Pa., in September, 1913. There was denial of
liability on the part of defendant, and plea further that, in
reference to this shipment, defendant was a common carrier
engaged in interstate commerce; that it had filed its
schedule of rates with the Interstate Commerce Commission
and under the contract of shipment the company's
liability, in any event, was restricted to $100. The schedule
of rates was presented in evidence in support of the plea and
on issues submitted the jury rendered the following verdict:
"(1)
Did the defendant breach its contract as alleged in the
complaint? Answer: Yes.
(2) If
so, was the plaintiff's horse injured by the negligence
of the defendant, while being transported in violation of the
said contract, as alleged in the complaint? Answer: Yes.
(3)
What damage, if any, has the plaintiff sustained by reason of
said injury? Answer: $2,500.00, twenty-five hundred."
Judgment
on the verdict for plaintiff, and defendant excepted and
appealed, assigning for error, chiefly, that the jury were
allowed to award damages in excess of the amount specified in
the contract.
Winston & Biggs, of Raleigh, and J. C. Buxton, Watson, Watson & Robinson, and R. G. Parker, all of Winston-Salem, for
appellant.
Manly
Hendren & Womble, of Winston-Salem, for appellee.
HOKE,
J. (after stating the facts as above).
The
complaint alleged, and the proof on the part of plaintiff
tended to show:
That in
September, 1913, "the plaintiff, through his duly
authorized agent, H. N. Reaves, and in the name of said H. N.
Reaves, contracted with the defendant to carry by express two
race horses from the town of Winchester, Va., to the town of
Hanover, Pa., and that said H. N. Reaves paid the defendant
the charges required for the transportation of said horses by
express. That, although the defendant accepted said horses
for transportation by express, and contracted with the
plaintiff's agent to ship them by express, from
Winchester, Va., to Hanover, Pa., when the car in which the
horses were being shipped reached York, Pa., it was cut off
from the express train and was placed on the freight yards,
where it was allowed to remain for several hours, and was
then, in violation of the defendant's contract, attached
to a freight train, and the said horses were hauled from
York, Pa., to Hanover, Pa., by freight train, which was in
violation of the defendant's contract, it having
contracted to ship said horses by express. That, while the
car was being shifted by the freight trains on the yards at
York, Pa., and on the route to Hanover, it was handled in
such a rough and careless manner that one of the horses, a
mare named Eudora, was knocked down twice, and was seriously
and permanently injured."
The
evidence introduced by plaintiff tended to show, further,
that the horses were in a car prepared for the purpose, and
for use only in connection with passenger train service, and
that the witnesses had never known of horses in that kind of
car, shipped by express, being connected with freight trains;
that the injured mare was a racing animal of unusual success
and great promise, and was worth $4,500 or $5,000; and that
by reason of the injuries received while on the freight yards
and being conveyed by freight train her value was reduced to
$250 or $400. In regard to conditions caused by change in the
character of the shipment, one of plaintiff's witnesses,
D. P. Verner, the mare's keeper, testified, among other
things, as follows:
"When we reached York, the mare was all right, just like
she left Winchester. We got into York some time before day.
When I waked the next morning, I looked out and we were in
the York yards. I do not know exactly what time we left York,
but we left on a freight train of about 40 cars. This express
car was about the middle of the train. We were in the car,
sitting on the side track at York, and they turned loose
three box cars, and hit this car, and knocked this mare down,
and it took two of us to get her up. I looked to see what hit
the car, and three box cars were coming, turned loose, and
hit the car, knocked two of the horses down, and knocked the
trunks and sulkies down on each other, and then they put us
on this freight train. They were shifting and making up this
freight train with this express car in it. When we started to
York, they would run awhile and stop and knock the cars
against each other--just keep on doing that way, and knocked
her down about half way between York and Hanover. When they
knocked her down, it took two of us to get her up. Her hip
was skinned, and all the hair was cut loose on her hind feet.
They knocked her down again about half way between York and
Hanover, and we got her up again, and she was awful nervous.
I had to stand at her head practically all the way, and the
train was running so you could not stand still, and the
trunks and sulkies flapping about and making such a noise,
and they would stop and knock up against the mare, and
knocked her against the bar 2X4 across her breast, and
knocked the window out at her head--just knocked her around
all the way. I stood at her head all the way from York,
trying to keep her quiet. They were handling her so rough she
could not stand still, and she was excited. They had knocked
her down twice, and she was nervous, and I was trying to keep
her quiet as best I could. It looked like they would be
running, and all at once stop and throw all of us on the
horses. The other caretakers were trying to hold their horses
to keep them quiet. When traveling with horses by express,
the express company sends an express messenger with us in the
car. An express messenger started out with us from
Winchester, but I did not see anything more of him after we
left York. He would not go in the freight. They are supposed
to send a messenger with a carload of horses. I have traveled
a great deal in cars with horses shipped by express. In a
shipment by express, I never knew a car that I was in put in
a freight train before. Ordinarily, express cars are hauled
in express or passenger trains. Some of them are through
express. When we reached Hanover, this mare was in bad
condition; looked like she was on the verge of a chill, and
could not walk; had to sort of push her along. She looked
like she was broken down in the back; walked like a hog
broken down in the loins, back of her hind legs; looked like
the meat was cut loose on her hind legs from the hock down to
the hoof; right hip skin knocked off, and left hip bone was
injured; wasn't much skin off of it. There was a piece as
big as your two hands on the right hip, but on the left hip
just a little place, but it was sorer than the right
hip."
For
defendant there was evidence tending to show that, while it
was not customary to ship horses under this kind of contract
by freight, it was sometimes done for short distances and
when no time would be lost by it. Defendant also introduced
the schedule of rates filed with the Interstate Commerce
Commission, showing the alternative rates for shipment by
express where liability was limited to $100 and less sums,
and an increased rate where valuation exceeded that sum, and
relied on a clause in the contract of shipment in which these
rates were set forth; the evidence tending to show that
plaintiff had selected and made his contract in reference to
the lower rate, and containing provision that the shipper, in
order to avail himself of the lower rates, had valued each
horse at $100, and "expressly agreed that in no event
shall the express company be liable in excess of the above
valuation," and in this connection F. Mantz, division
agent of the company, testified as follows:
"This
is the contract that I made with Mr. Reaves. I was in
Winchester
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