Chesapeake & O. Ry. Co v. Sons

• Decision Date: 15 June 1905
• Citation: 51 S.E. 161,104 Va. 97
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. F. W. STOCK & SONS.

104 Va. 97

51 S.E. 161

CHESAPEAKE & O. RY. CO.

v.F. W. STOCK & SONS.

Supreme Court of Appeals of Virginia.

June 15, 1905.

1. Carriers—Actions—Pleading—Declaration.

A declaration against a carrier for loss of goods in transit, alleging the consideration, the promise, the breach, and the giving of the notice of loss required by the bill of lading, states a cause of action in assumpsit upon the contract of carriage.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 569, 570.]

2. Same—Bills of Particulars.

In an action against a carrier for the loss of goods in transit, the refusal to require plaintiffs to show in the bill of particulars where the goods and cars were delivered to defendant was not error where defendant was not embarrassed in making its defense by the lack of such statement.

3. Evidence—Letters—Carbon Copies.

A carbon copy, made at the same time and by the same impression of type as a letter, may be regarded as a duplicate original of the letter itself, and admitted in evidence without notice to produce the letter itself.

4. Same—Offer of Settlement.

An offer of settlement, not accompanied with a caution that it is confidential and without prejudice, and not shown to have been made as a concession in an effort to buy peace, is receivable in evidence as an admission.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 745-753.]

6. Carriers—Loss of Goods — Measure of Damages.

The measure of damages for loss of goods by a carrier is the value of the goods at destination, with interest from the time when the goods should have been delivered, less the unpaid costs of transportation.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 599-607.]

6. Carriers—Connecting Carriers—Liability.

A connecting carrier is not liable for a loss not occurring on its portion of the through route, unless it stands in the relation of principal and agent, or partner, or some similar relation to the defaulting carrier; and in order to hold it liable facts showing such relation must be alleged in the declaration.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 780, 795.]

7. Pleading—Bill of Particulars—Office.

The bill of particulars is no part of the declaration.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 949.]

8. Carriers — Connecting Carriers — Through Contracts.

A bill of lading guarantying a through rate to destination does not establish an agency or partnership relation between the connecting railroads, so as to render one liable for the default of the other.

9. Trial — Instructions — Sufficiency of Evidence.

A scintilla of evidence, which is not sufficient to support a verdict, does not call for an instruction on the issue to which it is addressed.

10. Same—Amendment of Requests.

While the court is bound to give any correct instruction applicable to the evidence which is asked for by either party, yet it may refuse to give an incorrect instruction, and need not amend the same so as to accord with the law and the facts, and give it as amended.

Error to Circuit Court of Elizabeth City County.

Action by F. W. Stock & Sons against the Chesapeake & Ohio Railway Company. There was a judgment for plaintiffs, and defendant brings error. Reversed.

S. O. Bland and R. G. Bickford, for plaintiff in error.

H. G. Avery and Gordon Paxton, for defendants in error.

KEITH, P. Stock & Sons made two shipments of flour from points in the state of Michigan to Phoebus, in the state of Virginia. The first shipment was made in October, 1902, in car No. 5, 905; the second in February, 1903, in car No. 25, 578. There was a loss of goods upon each shipment, for which Stock & Sons brought an action of assumpsit against the Chesapeake & Ohio Railway Company.

The loss claimed upon the goods shipped in car No. 5, 905, amounting to $612.75, was paid into court, and there is no controversy with respect to it, except as to the allowance of interest from November 1, 1902; the contention of plaintiff in error being that it was entitled to reasonable time after the goods should have been delivered to ascertain if it was liable.

The injury to car No. 5, 905 occurred on the 18th of October. There is no dispute about the amount or the liability. The money has been paid into court, and, even upon the theory of plaintiff in error as to the extent ofits liability for interest, that it was entitled to a reasonable time to investigate as to its liability, and that pending such inquiry the amount for which it was found to be responsible should not bear interest, we would not disturb the verdict of the jury, which gives interest from the 1st day of November.

The real contention in the case is in respect to plaintiff in error's liability for loss of the goods shipped in car No. 25, 578. There seems to be no controversy with respect to the amount of the loss, which was $758, and a settlement was only prevented by disagreement with reference to the allowance of interest The parties not being able to agree, this suit was instituted, resulting in a verdict for $612.75, with interest from the 1st of November, 1902, and for $758, with interest from March 1, 1903, to be credited by the sum of $612.75, the amount paid into court.

The first assignment of error is to the judgment of the court overruling a demurrer to the declaration.

We are of opinion that the declaration is sufficient.

Speaking of actions in assumpsit, Hutchinson on Carriers (2d Ed.) at section 744, says: "Notwithstanding these essential differences between actions on the case and in assumpsit against the carrier, it seems to have been in former times a very perplexing question how the one form of action should be distinguished from the other. The declarations in the two kinds of actions, according to approved formulas, were so nearly alike that in many cases the astutest judges became perplexed in their efforts to find out to which class the declarations belonged. It seems, however, to be finally settled that, while the allegation of a promise in the declaration will not be sufficient to impress upon it the distinctive feature of a declaration upon the contract because the words 'agreed, ' 'undertook, ' or even the more significant word 'promised, ' must be treated as no more than inducement to the duty imposed by the common law, yet if there be an averment of a promise and a consideration, the declaration will be construed to be upon the contract, and not for the breach of duty. And consequently, when the word 'consideration' was left out, the action was held to be in tort"

The difficulty is doubtless a survival of the time when assumpsit, though founded upon contract, was deemed a species of action on the case, having its origin in a wrong. 4 Cyc. 320. Encyc. Pl. & Pr. vol. 2, p. 988.

The first six counts state a cause of action arising upon an express contract. They set forth the consideration, the promise, the breach, and that notice in writing was given by the plaintiffs to the defendant, as prescribed by the bill of lading. The seventh count is in the usual form of a general count in assumpsit, and is free from objection.

The second assignment of error is to the refusal of the court to require plaintiffs to show in the bill of particulars where the

goods and chattels and cars in the bill of particulars mentioned were delivered to the defendant.

It is evident that the plaintiff in error was not embarrassed or hindered in any degree in making its defense by the lack of this statement, and this assignment of error is overruled.

The third, fourth, seventh, and eighth assignments of error are with respect to the notice of the claim of loss. The court permitted a letter to be introduced from Stock & Sons to A. R. Sydnor, dated March 31, 1903, addressed to him as agent of the Chesapeake & Ohio Railway Company at Norfolk, Va., the receipt of which was acknowledged by Sydnor on April 1, 1903.

The contention of plaintiff in error is that copies of a letter cannot be admitted in evidence where no notice has been given to produce the original, and no foundation laid for the introduction of a copy. To this the defendants in error reply that a letter-press copy is not regarded as equivalent to the letter itself, but a carbon copy, which is made at the same time and by the same impression of type with the letter, may well be regarded as a duplicate original with the letter itself. And we think this position is sound.

As was said in Hubbard v. Russell, 24 Barb. 404: "If two letters are written at the same time to the same person, one being the exact counterpart of the other, one being sent to the person addressed and the other retained by the writer, each is an original, and the one retained may be put in evidence by the party who retained it, without notice to the opposite party to produce the other."

We can find in the record, however, no satisfactory proof that the letter objected to was a carbon copy made at the same time and by the same impression of type with the letter, and therefore to be regarded as a duplicate original of the letter itself.

It is also contended on behalf of the defendants in error that the admission of these letters was at most harmless error, because the stipulation that the carrier shall not be liable for loss or injury unless the claim therefor is presented in writing within a specified number of days after the occurrence of the injury has no application, and is not to be considered in cases where the carrier was of necessity aware of the loss and of its extent, as where there is a complete failure to deliver, or where the injury to the goods was examined by the carrier's agent in person for the purpose of ascertaining its extent—citing 5 Am. & Eng. Ency. 324; 6 Cyc. 506; while in this case both car loads of the damaged flour were sold by the defendant, and the proceeds received by it

As this case must go back for a new trial upon another ground, when the difficulty here presented can doubtless...