Big Sandy & C. R. Co v. Ball

• Decision Date: 21 September 1922
• Citation: 113 S.E. 722
• Court: Virginia Supreme Court
• Parties: BIG SANDY & C. R. CO. v. BALL.

113 S.E. 722

BIG SANDY & C. R. CO.

v.BALL.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

Error to Circuit Court, Buchanan County.

Action by G. W. Ball against the Big Sandy & Cumberland Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Greever, Gillespie & Divine, of Tazewell, for plaintiff in error.

Williams & Combs, of Grundy, and S. H. & Geo. C. Sutherland, of Clintwood, for defendant in error.

BURKS, J. This was an action of trespass on the case in which Ball, the defendant in error, recovered against the plaintiff in error a judgment for $4S0, for loss of a barrel of furs. The evidence in the case is brief and is as follows:

"G. W. Ball, the plaintiff, who stated that he shipped the barrel of fur by freight from Grundy, Va., on February 15, 1918, consigned to himself at Raven, Va., as shown by bill of lading introduced in the case, and that said shipment went by freight over the defendant company's railroad to its terminus at Devon, in the state of West Virginia, and that he instructed said defendant company to send said barrel of fur from its terminus at Devon, W Va., by express to him at Raven, Va., over the N. & W. Railroad, which is the only railroad which runs from Devon to Raven; that he had made several other shipments the same way over the same route.

"The plaintiff introduced in evidence by this witness the original bill of lading, given him by the defendant company, which is as follows:

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"The witness stated that he had paid $379.75 for said barrel of fur, but that it was worth $480.

"This plaintiff also stated that he had called for said barrel of fur at different times at the point of destination at Raven, Va., and that he had called for it and made claim within ten days of the date of shipment, but that it had not been delivered.

"After witness had left the witness stand in response to a question as to whether written notice was given of the loss of the barrel of fur he replied that he had by written letter notified the defendant company at its general office, of his loss, at Columbus, Ohio. The witness had left the witness chair when the last question was propounded, but was in the bar in the presence of the court and jury.

"And the defendant, to prove and maintain the issue on its part, offered the following evidence, to wit:

"The waybill showing the shipment by freight from Grundy, Va., to Devon, W. Va., of the barrel of fur weighing 100 pounds at the rate of 70 cents, and also a copy of bill showing a delivery of said shipment on February 16, 1918, to the Southern Express Company by the defendant company at Devon, W. Va., operating over the N. & W. Railroad."

The bill of lading referred to by the plaintiff in his testimony shows the receipt by the railroad company of one barrel of furs of G. W. Ball, at Grundy, Va., consigned to G. W. Ball, at Raven, Va., "Route Express from Devon, W. Va., " to be carried "to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination." The bill of lading was subject to the conditions printed thereon, amongst which was:

"Except in cases where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, claims must be made in writing to the carrier at the point of delivery, or at the point of origin within four months, after a reasonable time for delivery has elapsed."

When the case was called for trial, the defendant railroad company moved for a continuance on the ground that—

Its attorney, who lived in another county, "and the only attorney who had had charge of this case for the defendant since it was instituted until the present term when Williams and Combs appeared, had been unexpectedly called away about the beginning of this term of court, but some days before the calling of this case, on account of the sudden illness of his wife's uncle, who lives in Smyth county, Va., and his files contained the correspondence concerning this case, with the general office of the defendant company at Columbus, Ohio, including some records and documents that were necessary for the defendant to have and introduce in evidence in this case, and that the defendant could not go to trial without these records and documents. Plaintiff objected to a continuance, and asked a trial because Mr. Greever was absent at a previous term of court, and the case was continued on account of his absence."

But the court overruled the motion and forced the defendant into trial. The defendant pleaded the general issue, "not guilty, " and the plaintiff asked that defendant be required to state the grounds of its defense, and the court so ordered, but no ground was ever stated.

The first ground of error assigned is the refusal of the trial court to grant the defendant's motion for a continuance. No evidence was offered to sustain the motion, and it does not appear in any way how, if at all, the defendant was prejudiced by the ruling of the court. It appears to have been represented at the trial by able counsel, who presented its defense fully, and the testimony fails to disclose the existence of any "records and documents" not available to such counsel. The trial court committed no error disclosed by the record in refusing the continuance. As said in Va. Iron, Coal & Coke Co. v. Kiser, 105 Va. 695, 54 S. E. 8S9:

"It has been often repeated by this court, and is the established rule everywhere, that the granting and refusing of a continuance is always addressed to the sound discretion of the trial court, and to entitle a party to a reversal on that ground it must be clearly shown that the court abused its discretion, and that injury resulted to the party complaining from the abuse.

"The defendant company has not pointed out in its petition for this writ of error, nor is there disclosed in the record, any mismanagement or mistake by the learned counsel who conducted the trial for the defense in the court below, or any injury that resulted to it by reason of the absence of Mr. Cabell, therefore there is no ground whatever upon which to rest this assignment of error."

See, also, Thompson's Case, 131 Va. —, 109 S. E. 447.

The next error assigned is the refusal of the trial court to give defendant's instructions numbered 1 and 2. Both of these instructions are founded upon the theory that, because the plaintiff had designated the connecting carrier, to wit, by express from Devon, W. Va., to Raven, Va., there was no through bill of lading, and that when the railroad company delivered the furs to the express company at Devon, it had fulfilled its obligation; that the bill of lading was only evidence of a contract to carry from Grundy, Va., to Devon, W. Va., and...