Herring v. Chesapeake & W. R. Co

• Decision Date: 17 September 1903
• Citation: 101 Va. 778,45 S.E. 322
• Court: Virginia Supreme Court
• Parties: HERRING. v. CHESAPEAKE & W. R. CO. et al.

45 S.E. 322

101 Va. 778

HERRING.

v.CHESAPEAKE & W. R. CO. et al.

Supreme Court of Appeals of Virginia.

Sept. 17, 1903.

APPEAL—JURISDICTIONAL AMOUNT—CARRIERS OF FREIGHT—WAYBILL—ACT OF GOD—REMOTE AND PROXIMATE CAUSE.

1. Interest which would necessarily accrue upon the amount of the claim is to be added to the principal in determining whether the amount involved is sufficient to give this court jurisdiction.

2. A fact that a car is waybilled to a particular place is no evidence of a contract of through transportation, but merely shows the destination of the car.

3. A carrier assumes all risks except those occasioned by the act of God or a public enemy, and, where a storm is the proximate cause of an injury, the carrier is excused.

v 3. See Carriers, vol. 9, Cent. Dig. § 528.

4. Though a carrier was responsible for delay in shipment of stock at New Orleans, it cannot be held liable to the consignor in damages resulting from injury to his stock, the proximate cause of which was exposure to a severe storm that began after the stock left New Orleans.

Appeal from Circuit Court, Rockingham County.

Bill by the Chesapeake & Western Railroad Company against H. G. Herring and others. Decree for plaintiff, and defendant Herring appeals. Affirmed.

Herring & Herring and Geo. G. Grattan, for appellant.

Sipe & Harris, T. N. Haws, and Henry H. Downing, for appellee.

CARDWELL. J. The Chesapeake & Western Railroad Company, the terminal carrier, filed its bill to enforce its lien for transportation charges on a car load of horses shipped by appellant, H. G. Herring, from Albany, Tex., to Bridgewater, Va., the amount claimed being $260.50 for transportation charges and $47.75 for feed charges, aggregating $308.25. The Norfolk & Western Railroad Company, the Southern Railroad Company, the Louisville & Nashville Railroad Company, and the Texas & Pacific Railroad Company, all connecting carriers, over whose lines the stock passed, were made defendants along with the appellant.

Appellant filed his answer to the bill, alleging that he contracted with the Texas Central Railroad Company (the initial carrier, but not a party to the suit) to transport his stock from Albany, Tex., to Harrisonburg, Va., for the rate of $250.50, and not $260.50, the rate demanded at Bridgewater that by reason of unjustifiable delay at various points—particularly of four days, or a little more, at New Orleans—the stock was exposed to the fury of the unprecedented cold and snowstorm of February, 1899, as a result of which four of his very finest horses died, worth at the very lowest estimation $425, and he had to pay $43 in cash for feed and other things; which damages he claimed the right to set off "against any claim of the Texas Central, the Texas & Pacific, and the Louisville & Nashville Railroad Companies, or either of them, in this cause, " none of which companies were making any claim against which the set-off could be allowed, having each been paid their respective charges on the shipment of his stock by the succeeding connecting carrier, according to the usual custom of railroad companies.

This answer, though it did not pray to be treated as a cross-bill, was, in the decree appealed from, so treated as to the Louisville & Nashville Railroad Company, against which company the blame for the delay in sending forward the stock was alleged.

The Louisville & Nashville Railroad Company answered the original bill filed by the Chesapeake & Western Railroad Company, and in its answer also answered the allegations of the answer and cross-bill of appellant, denying the alleged contract for the transportation of his stock from Albany, Tex., to Harrisonburg, Va., at the rate of $250.50; denying that there was any contract at all for the through shipment of the stock until the contract with the respondent (Louisville & Nashville Railroad Company), exhibited with its answer made at New Orleans, February 7, 1899; denying any blame or responsibility for the alleged delay of four days at New Orleans; and alleging that no damage or injury was suffered by the stock while on the respondent's line or in its pens.

Upon the hearing of the cause on the pleadings, the exhibits therewith, and the depositions of witnesses, the circuit court decreed in favor of the Chesapeake & Western Railroad Company against the appellant for the amount of its claim, $308.25, with interest thereon from February 18, 1899, and costs, and dismissed, with costs to the Louisville & Nashville Railroad Company, the cross-bill of the appellant setting up his claim for damages to his stock which he asked to be set off against the interest of the Texas Central, the Texas & Pacific, and the Louisville & Nashville Railroad Companies, or either of them, in the recovery by the Chesapeake & Western Railroad Company in this cause. We are asked to review and reverse the decree in so far as it denied the right of appellant to set off the claim asserted in his answer and cross-bill against the interest of the Louisville & Nashville Railroad Company in the recovery made by the Chesapeake & Western Railroad Company and dismissing appellant's bill. The first question presented is whether ornot the amount involved in the appeal is sufficient to confer jurisdiction upon this court. It is true that the appellant, after setting out his damages to be the value of four of his best horses, worth at least $425. and $43 for feed and other things, only adds, "and other damages to the amount of $50 by reason of injury to the horses which did not die"; but, if this latter claim of damage should be disregarded because too vaguely made, the claim of damage to the amount of $468 is | sufficiently made, and, if appellant was entitied to recover that amount at all, he was certainly entitled to...