Melendy v. Barbour

• Decision Date: 07 February 1884
• Parties: MELENDY & RUSSELL v. BARBOUR, RECEIVER.
• Court: Virginia Supreme Court

78 Va. 544

MELENDY & RUSSELL v. BARBOUR, RECEIVER.

Supreme Court of Appeals of Virginia.

February 7, 1884

Appeal from decree of circuit court of Alexandria city, entered May 28th, 1880, on a petition filed in the chancery cause of Graham v. Washington City, Virginia Midland and Great Southern Railroad and others, wherein said railroad had been placed under the management of John S. Barbour as receiver. The petition was filed by A. B. Melendy and T. J Russell. Its object was to recover damages for the killing of their race horse, " Bristow," which they valued at $50,000, by the negligence of the receiver's agents and employees. The circuit court refused to allow petitioners to sue the receiver at law, but directed a commissioner to ascertain and report the damage received. Commissioner took evidence, and reported the horse to have been worth $40,000. The circuit court recommitted the report without passing on the defendant's exception thereto. Commissioner took additional evidence, and reported the value of the horse at only $1,000. This report the court confirmed, despite the petitioners' exceptions thereto, and decreed that the receiver pay out of the funds in his hands as such to the said petitioners, the sum of $1,000, with interest thereon from October 13th, 1877, with their costs about their said petition expended. From this decree the petitioners obtained an appeal to this court.

The facts are fully set forth in the opinion.

John W. Daniel, for the appellants.

1. Suit is maintainable by a shipper, or his agent, to whom bill of lading is issued.

2. A carrier of freight or passengers is bound to carry safely.

3. If carrier does not carry safely, the burden of proof is, in all cases, on him to prove that he was not negligent, and to exonerate himself.

4. He can only exonerate himself, in general, by showing that loss resulted from act of God, the public enemy, or the shipper himself.

5. The carrier may limit his liability as an insurer of safe carriage.

6. But he cannot exempt himself from, or limit, his liability by any contract, for loss resulting from his own negligence.

7. Public policy interdicts any traffic in, or contract respecting, negligence.

8. Free carriage of freight or passengers in no wise alters the law respecting negligence by which damage results.

9. In brief: a carrier may by contract exempt himself from liability, or limit his liability, for losses resulting from the acts of strangers; but he can do neither in respect to the wrongful acts of himself or his agents.

10. A party who, by negligence, destroys property must pay its full value.

11. A receiver's earnings are liable for payment of losses occasioned by negligence of his employees.

Charles M. Blackford, for the appellees.

It is admitted that the receiver may be held responsible in any case which a company could be so held. Whether the facts of this case render him liable will be considered hereafter.

We will examine the questions in the following order:

I.--IN REGARD TO THE TRUE VALUE OF BRISTOW.

In the court below the appellants demanded fifty thousand dollars. The court awarded them one thousand, and they appealed.

To be worth over $1,000 a horse must be a very remarkable animal. Few horses bring that price.

Bristow first saw the light of day somewhere in the rural districts of East Tennessee. Of his early colthood history is silent and the first glimpse the testimony gives of his career is found in the statement that when two and a half years old he was purchased by one of the present claimants (T. J. Russell) for the sum of $125. He was then christened " Little Frank," by which name he first appeared in public as a pacing gelding at Knoxville, Tennessee, in October, 1874 winning small purses, in doubtful heats, in two minutes and fifty-eight seconds, or distanced by " Little Nell" in two twenty-eight. His trainer at this time, Jack Lowe, says he was not then " a valuable track horse" because of his stubborn disposition and his inclinations to balk, and, further, because he " did not consider he had speed enough" ; subsequently, he regarded him unreliable, because he was a converted pacer. At this time he says his owner asked $500 for him, but he did not consider him worth it.

After this first public appearance " Little Frank" retired to the shades of Morristown, and is not heard of again until the fall of 1876, when he appears unsuccessful as a contestant for the small premiums at the Bristol fair, when Andy Sprague, who has been training horses for seventeen years, says his fastest speed was two fifty-four; that he was a " bad actor" that " broke very badly," and that he would not have given two hundred dollars for him.

Beaten and disgraced, again he retired, and having proved so bad a speculation as a pacer, his owner, Mr. Russell, determined to call in the aid of Mr. A. B. Melendy for the purpose of giving him some value by " converting" him into a trotter. So hopeless did both these trainers regard this effort, that Melendy would only undertake the job on condition that he should have one-half of the horse as a gift--a proposition which Russell gladly accepted.

So " Little Frank" was sent over to A. B. Melendy, who put him under the charge of his boy, A. R?? Melendy, then seventeen years old, on Cain's track, which seems to have done duty alternately as a race course and a cornfield. He remained at Cain's from April, 1877, until the fall, when he started on the tour which was, according to the sanguine and posthumous views of the frequenters of old Cain's cornfield, to stamp him as a " world beater," a " trotting phenomenon," a " terribly powerful horse," a bonanza whose value should suddenly be developed from $200 to $50,000--indeed, to $70,000-- according to Gov. Senter, who never saw Bristow but once and then under the saddle, and is now paraded as an expert in jockeyism, because he once saw a horse race on Coney island.

After lengthy discussion of the evidence concerning the value of the horse, the counsel concludes that subject thus:

On the evidence I respectfully submit, the court below went very far in fixing the value of Bristow at one thousand dollars. Six hundred would have been nearer his value.

II.--THE MEASURE OF THE LEGAL RESPONSIBILITY OF RECEIVER.

It is not denied that the funds in the hands of the receiver should be held responsible to any claim for damages arising under the receivership, which would be good against the company had it not passed into the hands of the receiver; in other words, that the property has no immunity from such responsibility by reason of the fact it is under the control of a receiver.

But what is his responsibility as to this claim? The contract is the measure of liability, and this assertion is made with a full knowledge of all the learning and current of decisions which declare against the right of a carrier to limit his liability as against negligence.

In this case, the two horses were taken to the Virginia Midland agent at Lynchburg and shipped with the understanding that the stock was to be shipped free; but to protect the receiver against fraud, it was also agreed that the shipper should pay freight one way, and that upon his returning the stock over the road after exhibiting, the freight so paid should be returned.

For the sake of the argument, we will proceed for the present under the supposition that there was negligence--a matter of which we will inquire hereafter--and taking this for granted, let us inquire into the measure of the legal responsibility of the receiver.

This horse was shipped--as any other horses were shipped over that line-- without any notice being given of its possessing any extraordinary virtues or unusual qualities which rendered it more valuable than any other horse of its age, shape and build, and under a contract which contained this clause:

" The party of the second part (Melendy) agrees that the party of the first part (the receiver) shall not, under any circumstances, nor for any cause, be held liable beyond the sum of $200 for injury to or loss of any single animal carried pursuant to this agreement, although the actual value of that animal may exceed that amount."

Such a clause is not repugnant to the law of carriers. It is based on common sense. A shipper carries a horse to the agent of a railroad to be sent to some distant point; there is nothing about him to excite remark or raise any presumption of unusual value, and the shipper sends him at the same rates charged for the most ordinary hack; the horse is killed, and the shipper steps forward and says that was Parole or Rarus, or the winner of the last Derby, or Bristow; pay me $70,000. Would it be reasonable that the railroad company, under such circumstances, should be responsible, even without any such clause of limitation as that above? Where such an unusual risk is to be assumed there must be unusual compensation, and there must be notice so there may be unusual care. Hence, to protect themselves, the railroad companies have inserted such clauses as that quoted above, whereby notice is given to the shipper of what the legal rights of the carrier are, so that he may make such arrangements and contracts as will protect him in transporting stock of fancy value.

Common sense, as is apt to be the case, is sustained by the courts and jurists. Says Greenleaf--(2d Evidence, § 215):

" It is now well settled that a common carrier may qualify his liability by a general notice to all who may employ him, of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of parcels, and the information to be given to him of their contents, the rates of freight and the like; as, for example, that he will not be

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