Norfoek & W. Ry. Co v. Son

• Citation: 117 Va. 788,86 S.E. 124
• Court: Virginia Supreme Court
• Decision Date: 09 September 1915
• Parties: NORFOEK & W. RY. CO. v. A. J. STEELE & SON.

86 S.E. 124

117 Va. 788

NORFOEK & W. RY. CO.

v.A. J. STEELE & SON.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Error to Circuit Court, Tazewell County.

Action by A. J. Steele & Son against the Norfolk & Western Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Henry & Graham & Hawthorne, of Tazewell, for plaintiff in error.

Greever & Gillespie and Harman & Pobst, all of Tazewell, for defendants in error.

KELLY, J. This action was brought by A. J. Steele & Son, hereinafter referred to as the plaintiffs, against the Norfolk & Western Railway Company, hereinafter called the defendant, to recover damages alleged to have resulted from negligence and unwarranted delay in the transportation of three interstate shipments of live stock. These shipments originated in Tazewell county and their destination was Jersey City. There was a judgment for the plaintiffs, and to that judgment this writ of error was awarded.

There were 13 assignments of error, which, in so far as they may require separate discussion, will be disposed of in the order and by the numbers appearing in the defendant's petition.

1. A demurrer to the declaration was overruled, and exception was taken to this ruling; but the exception, while not waived, was not argued either orally or in the brief. We have considered the grounds upon which the do-murrer was based, and are of opinion that none of them were well taken.

2. The second assignment of error complains of the action of the circuit court in refusing to quash the summons issued at the instance of the plaintiffs under the provisions of section 3371 of the Code of Virginia. If the court erred in refusing the motion to quash the summons, the error was not to the prejudice of the defendant, since it not only relied upon, and insisted that plaintiffs were bound by, the data given in its answer to the summons, but introduced witnesses in its own behalf to prove the same facts.

3. The act of Congress (U. S. Comp. Stat. Supp. 1913, § 8651), making it unlawful for any railroad company, over whose road cattle, sheep, or other animals are conveyed from one state into or through another, to confine the stock in cars for more than 28 consecutive hours without unloading for rest and food, is subject, among other qualifications, to the proviso:

"That upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading or other railroad form, the time of confinement may be extended to thirty-six hours."

In the present case, F. R. Steele, a member of the firm making the shipment, made an indorsement in his own handwriting on the blank margin of the "uniform live stock contract, " or bill of lading, covering one of the shipments, which, according to the printed record before us was as follows:

"No one in charge. 36-hr. run requested without feed or water. S. L. & Co. Loaded O. K. per June 12, 1913."

The initials "S. L. & Co." were probably a misprint from the original "St. & Co., " an abbreviation of the plaintiffs' firm name appearing in full in the bill of lading. The circuit court held that this indorsement was sufficient to bring the shipment in question within the terms of the above-recited proviso of the federal statute, and permitted the same to be read to the jury. This action is the basis of one of defendant's bills of exception.

We think the exception cannot be sustained. The request was in writing, and was "separate and apart from any printed bill of lading or other railroad form, " in the sense and for the purpose evidently contemplated by the statute. This indorsement was an affirmative and conspicuous expression of the wish of the shipper, removed from any possibility of being overlooked or inadvertently signed along with the numerous other stipulations and provisions usually appearing in the printed forms of shipping contracts used by the railroads. The evidence shows that one of the connecting carriers, the Pennsylvania Railroad, either violated the statute by keeping this stock confined for over 28 hours, or construed the indorsement in question as being sufficient to warrant it in making a 36-hour run without feed or water. That the latter is a correct construction to place upon the indorsement in question becomes all the more apparent, if we stop to consider the poor standing which the plaintiffs themselves would have in court if they, instead of the defendant, were now attacking the validity and sufficiency of the request thus made by them. See Wabash R. Co. v. United States, 178 Fed. 5, 101 C. C. A. 133, 21 Ann. Cas. 819.

4. The fourth assignment of error raises the most controverted question in the case. It is based upon the defendant's contention that the contracts under which these shipments were made, in a form designated as the "uniform live stock contract, " contained valid limitations of liability, which were disregarded by the lower court. The three contracts were all in the same form, and contained two separate and distinct provisions intended to affect the liability of the defendant company. Both of these provisions must be read in the light of the following opening paragraph in the contract or bill of lading:

"Notice. This railway has two rates on live stock. The rate given under this contract is lower than the rate made by the railway company for the transportation of stock at the carrier's risk and without limitation of liability, and is based upon the conditions and agreement found in this contract and upon the valuations therein fixed. The shipper, by signing this contract, is deemed to accept the lower rate upon the terms and conditions specified as a part of this contract."

Coming now to the two aforesaid provisions intended to limit liability, as they appear in the contract, the first one is in the following language:

"That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of —per —, which is the lower published

tariff rate based upon the express condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employes, or otherwise: * * * If cattle or cows, not exceeding $75.00 each; * * * if sheep, lambs, stock calves, or other small animals, not exceeding $5.00 each. And in no event shall the carrier's liability exceed $1,200.00 upon any car load."

This provision, as the law stood at the time of these shipments, was clearly valid as to an interstate shipment, and has in effect been upheld in a long line of decisions by the Supreme Court of the United States, among the more recent of which are Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Kansas City R. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Missouri-Kansas R. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Boston & Maine R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450; Geo. N. Pierce Co. v. Wells-Fargo Co. (decided February 23, 1915) 236 U. S. 278, 35 Sup. Ct. 351, 59 L. Ed. 576.

We cannot, however, accord to this provision the meaning contended for by the de-fendant company, namely, that if the cattle, sheep, and lambs actually brought in the market as much as their respective agreed valuation, the provision in question would operate to protect the defendant against any liability. It may be observed in this connection that, if there is any doubt about the proper construction of this provision, the doubt must be resolved against the defendant. See Moore on Carriers (1906) page 351, § 32, and cases cited. We think, however, that in view of the history and usual purpose of provisions of this character there can be no doubt that the one in question means no more and no less than that no liability in excess of the valuations named in the contract shall in any event attach to the company, whether the damage complained of grows out of delay in transportation of the property, or its loss, destruction, or physical injury.

The language of the Supreme Court of Tennessee, in the case of Starnes v. L. & N. R. Co., 91 Tenn. 516, 19 S. W. 675, in an action on a bill of lading where the agreed value for horses was limited to $100 per head, is directly in point. The court there said:

"A shipper will not be heard to claim a recovery for damage or loss, however great, in excess of amount named in the bill of lading as the agreed value; nor will the carrier be allowed to deny liability for actual damage up to that amount. The carrier must respond for negligence up to that value, but no further."

See, also, Ficklin v. Wabash Co., 117 Mo. App. 211, 93 S. W. 861.

We are of opinion, therefore, that although the shipper realized in the market, as he did in this case, more than the agreed valuation, he was entitled to recover any damage less than such valuation which he could prove had...