Chesapeake & O. Ry. Co. Of Ind. v. Nat'l Bank Of Commerce Of Norfolk

• Decision Date: 21 March 1918
• Citation: 95 S.E. 454
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. OF INDIANA. v. NATIONAL BANK OF COMMERCE OF NORFOLK.

95 S.E. 454

CHESAPEAKE & O. RY. CO. OF INDIANA.

v.NATIONAL BANK OF COMMERCE OF NORFOLK.

Supreme Court of Appeals of Virginia.

March 21, 1918.

Error to Law and Equity Court of City of Richmond.

Action by the National Bank of Commerce of Norfolk against the Chesapeake & Ohio Railway Company of Indiana. To review a judgment for plaintiff, defendant brings error. Affirmed.

This is an action of assumpsit by defendant in error (hereinafter called plaintiff) against the plaintiff in error (hereinafter called defendant) to recover damages for loss of certain live stock, consisting of 50 horses and 11 colts. In the caption of the declaration the formal statement is made that plaintiff complains of the defendant "of a plea of trespass on the case, " omitting the further words "in assumpsit, " but the body of both of the two counts of the declaration allege a contract of carriage and the breach of it as the cause of action, and the declaration must be considered as in assumpsit.

The declaration in substance alleges a contract for a through interstate shipment, entered into between the plaintiff and defendant by which the defendant as a common carrier for a valuable consideration, undertook and promised to take care of and safely carry said live stock from Chicago, 111., to Windsor, N. C, and to safely and securely deliver such stock to the plaintiff at the last-named place; that the plaintiff caused said live stock to be delivered to the defendant at Chicago, 111., on September 30, 1916, to be so taken care of and carried; that the defendant then and there had and received such live stock for such purposes; and that the defendant disregarded its duty as a common carrier and its said promise and undertaking in that behalf, and so carelessly and negligently behaved and conducted itself with respect to said live stock that by and through the mere carelessness and negligence of the defendant and of its servants in this behalf the said live stock was afterwards "wholly lost" to the plaintiff (as alleged in the first count), and "was so badly damaged and injured that they became and were wholly lost" to the plaintiff (as alleged in the second count of the declaration).

There was a plea of "non assumpsit" by the defendant, upon which issue was joined, and there was a trial by jury. A letter of plaintiff, treated as a bill of particulars, alleged that:

"While in transit at Hinton, W. Va., on October 5, 1916, on the line of the Chesapeake & Ohio Railway Company, through negligence of its employes, a number of these horses were killed and the remainder so badly injured as to make them, of no value to the owner."

After the introduction of the plaintiff's and defendant's evidence, the defendant demurred to the evidence, whereupon the jury found a verdict for the plaintiff, subject to the decision of the court upon the demurrer to the evidence. Thereafter the court overruled said demurrer, entered the judgment complained of in favor of the plaintiff in accordance with said verdict, and the defendant brings error.

The Facts.

Considering the evidence as we must under the rule applicable thereto, we find the following material facts to be disclosed thereby:

The contract of carriage alleged in the declaration was proved and shown to have been an express contract in writing made directly between the plaintiff and defendant. It was evidenced by a "uniform live stock contract" in lieu of a "uniform bill of lading, " and was both a "receipt" and contract. It was in form made by the defendant with the shipper, but was in fact made for the sole benefit of the plaintiff, the consignee —the shipper at that time had no interest in the live stock, having prior thereto assigned and transferred all of his interest therein to the plaintiff.

The contract did not obligate the plaintiff in person or by agent to accompany the stock for the purpose of giving care and attention to it. It did provide, however, that the plaintiff "at his own risk and expense shall load and unload said live stock, and in case any person shall accompany said live stock in charge of the same, [shall] take care of, feed, and water said live stock transported, whether delayed in transit or otherwise. * * *" (Italics supplied.)

The evidence for plaintiff on the latter subject was to the effect that no person accompanied said stock from Chicago en route to Windsor, N. C, "in charge of the same, " or as employe or agent of the plaintiff.

The stock was properly loaded on two stock cars, at Chicago, were not overloaded or overcrowded, and were then in sound and good condition in every way, as shown by direct and positive testimony for plaintiff. Such situation and condition of the stock was shown to have continued on to a point between Chicago and Cincinnati (not shown precisely what point by the evidence), when a witness for the plaintiff last saw the stock en route.

There is no evidence In the case for plaintiff or defendant showing the subsequent condition of the stock or what happened to it prior to its arrival at the point of destination, Windsor, N. C.

When the stock arrived at Windsor, N. C. (according to the testimony for plaintiff), it was in such a condition that the jury were warranted in drawing the inference of fact that it had been injured by human agency other than the overloading or overcrowding of the stock on the cars, or in loading or unloading them, or from lack of care, or feed or water en route.

A portion of the testimony for plaintiff on this subject was as follows:

"Some broke their legs, some dying, and some had been dying in the car, and some were poor; everything had been ruined; couldn't do anything with them; nobody would buy them; * * * broken up; * * * all bunged up, all to pieces, and the feet, and the sides, holes where you could get your hands inside in theirribs. Q. What would make a hole like that? A. Where he jammed. Q. How many of those horses were in that condition? A. All of them. There were three good ones; * * * whole lot of them dead."

By another witness:

" * * * They were torn to pieces badly. I recall one had a great piece of flesh torn out of the side of its face. I recall two or three colts and horses had pieces a foot long torn off the legs. There were tears of flesh on the sides. There were a good many of them bruised."

The other evidence, from which the jury were warranted in drawing the inference of fact aforesaid, was indirect or circumstantial evidence, but it was ample. It would occupy too much space to recite it here. And such evidence as well as direct testimony for plaintiff as to personal examination of the stock prior to its reaching Chicago must be taken on the demurrer to the evidence as establishing the fact affirmatively that the damaged condition of the stock as it appeared at Windsor, N. C, was not due to native vice, defects, disease, or fright of the animals, or to overloading or overcrowding of them, or in loading or unloading them, or from lack of care, or feed, or water en route.

The acceptance of the shipment at Windsor, N. C, was refused by the plaintiff.

The market value of the stock uninjured as proved by the plaintiff was ample to justify the amount of the verdict of the jury.

It was disclosed by the evidence for plaintiff that the live stock aforesaid was brought to Chicago on a contract of carriage entered into at Wyoming, evidenced by an "order notify" bill of lading, carrying title to the stock, which was attached to a draft of the shipper on the plaintiff, which was paid by the latter at Norfolk, Va., on September 30. 1916; such bill of lading and title to the stock thus coming to the plaintiff. On that day the plaintiff was informed by telegram received from the bank in Wyoming, through which said draft and bill of lading had been forwarded to the plaintiff, that the two cars of live stock aforesaid were held in Chicago on account of "Eastern tariffs prohibiting movement of live stock on shipper's order contract, " i. e., on an "order notify" bill of lading, and that such bank had instructed the defendant to "change order and ship direct" to plaintiff, and requested plaintiff to deliver the "order notify" bill of lading it then held "to agent C. & O. Railroad." Accordingly plaintiff that day (September 30, 1916) surrendered such bill of lading to the Chesapeake & Ohio Railway Company at Norfolk, as agent for the defendant, the Chesapeake & Ohio Railway Company of Indiana; and the plaintiff, in effect, thereupon requested the defendant to ship the live stock to it at Windsor, N. C, on the new and different bill of lading or contract of carriage, as was in fact subsequently done by defendant as above set forth: that the plaintiff did this because of the information it had received as aforesaid to the effect that defendant would and could not receive the said shipment at Chicago on the "order notify" bill of lading aforesaid, for the reason aforesaid, and because the plaintiff was required to surrender such bill of lading as aforesaid.

The plaintiff did not introduce said "order notify" bill of lading in evidence, it being no longer in its possession, nor indeed did it introduce the "uniform live stock contract" aforesaid, issued by defendant at Chicago, as the latter had not in fact come into its hands; but the defendant having the former bill of lading and a copy of the latter contract in its possession introduced them both in evidence in connection with its cross-examination of one of plaintiff's witnesses.

The "order notify" bill of lading aforesaid thus introduced in evidence by the defendant showed on its face that it was given by the Union Pacific Railroad Company at Medicine Bow, Wyo., on September 24, 1916, and was a contract of carriage between the latter company and the shipper for the transportation of the live stock aforesaid from that point to Windsor, N. C, via Chicago, and thence over the line of the defendant, and thence over the same route and lines of connecting carriers as the stock...