Old Dominion S. S. Co v. Blakeman

• Decision Date: 20 January 1921
• Citation: 105 S.E. 752
• Parties: OLD DOMINION S. S. CO. v. BLAKEMAN.
• Court: Virginia Supreme Court

105 S.E. 752

OLD DOMINION S. S. CO.

v.BLAKEMAN.

Supreme Court of Appeals of Virginia.

Jan. 20, 1921.

Error to Circuit Court, Gloucester County.

Action by T. G. Blakeman against the Old Dominion Steamship Company. Judgment for the plaintiff, and defendant brings error. Amended and affirmed.

J. Boyd Sears, of Mathews, and J. D. Hank, Jr., of Richmond, for plaintiff in error.

Wm. C. L. Taliaferro, of Hampton, for defendant in error.

BURKS, J. This action was brought to recover the value of two boxes lost in interstate shipment, the contents and value of which are as follows:

                ----------------------------------------
                |One leopard skin coat       |$ 185 00 |
                |----------------------------|---------|
                |One beaver skin coat.       |400 00   |
                |----------------------------|---------|
                |One bear skin rug           |50 00    |
                |----------------------------|---------|
                |One skunk muff and stole    |50 00    |
                |----------------------------|---------|
                |One black fox muff and stole|80 00    |
                |----------------------------|---------|
                |One lot of books            |60 00    |
                |----------------------------|---------|
                |One violincello             |300 00   |
                |----------------------------|---------|
                |Pour oriental rugs          |165 00   |
                |----------------------------|---------|
                |Two sofa pillows            |10 00    |
                |----------------------------|---------|
                |Tatol                       |$1,300 00|
                ----------------------------------------
                

There was but little conflict in the testimony, and what conflict there was was removed by the verdict of the jury, who are the sole judges of the weight to be given the testimony. Viewing the case from this standpoint, the facts are as follows:

The Old Dominion Steamship Company is a transportation company doing intrastate and interstate business. On March 26, 1017, the plaintiff delivered to the steamship company, at a wharf in Virginia the two boxes aforesaid, to be transported to a point in Montana. He reached the wharf too late to obtain a bill of lading for the boxes, but had them loaded on one of the company's steamers and took passage thereon himself. After getting on board he notified the purser that he had the two boxes on board, and desired to ship them to the designated point in Montana and to prepay the freight thereon. The purser stated to him that he did not know what the freight charges would be on the connecting lines, and hence could not issue a bill of lading until he reached Norfolk, where he could get the necessary information. The plaintiff gave the purser a general description of the contents of the boxes as containing furs, a violincello, books, rugs, etc., but did not give the number of each kind, nor was any valuation asked or given. Neither was any mention made by either party of a higher or lower freight rate based upon a higher or lower valuation or limited liability. The purser prepaid the freight and mailed the bill of lading to the plaintiff, who received the same two or three weeks after the date of shipment. The plaintiff promptly remitted the freight to the purser. The plaintiff testified that, when he received the bill of lading, he did not examine it particularly, but noticed that the boxes were described as "2 boxes of H. H. goods, " but he presumed that that was the company's method of designating goods of the character which he had delivered to the purser. He did not at that time observe the clause limiting the amount of liability.

On May 22, 1917, the plaintiff sent a telegram to the agent at Dixondale, Va., stating that the purser was to ship the boxes, but they had not been received, and requesting that he would "ask about them and have him send tracer." When the same goods were shipped from Montana to Virginia in the fall of 1916, they were about 5 1/2 months on the road, and after waiting about that length of time after March 26, 1917, the plaintiff put in a tracer with the Chesapeake & Ohio Railway Company, referring to the bill of lading to describe and identify the shipment. Getting no results, he filed a claim with the purser on a form furnished by the agent at Big Timber, Mont., December 10, 1917. The purser reported that this claim had been lost, and the plaintiff filed a second claim on or about January 10, 1918, with the Old Dominion Steamship Company. The plaintiff further testified:

"When I became anxious about the shipment, about 5 1/2 months after the date of shipment, I examined the bill of lading carefully for the first time, and was surprised to notice a release valuation of $10 per hundredweight, as I had never put any valuation on the shipment at all. and none had been mentioned by either Mr. Sigmund [the purser] or myself. I had never agreed to this released valuation, or to a description of the goods as 'household goods.' It was a straight shipment and nothing was said as to conditions or limitations of any kind."

He said nothing about the rate at that time, as the time had elapsed for the goods to arrive, and he did not see how he could accomplish anything by calling attention to it at that time. He retained the bill of lading without objection until December 1, 1918, a few days after this motion was instituted, when he offered to pay the additional freight, but the offer was declined.

The rate of freight on furs by themselves, or when packed with other goods, was 69 cents; on household goods it was 26 cents. The goods were lost in transit, and this action was brought to recover their value. There was a judgment in the trial court in favor of the plaintiff for the full value of the goods, and to that judgment a writ of error was awarded by this court.

Several errors are assigned by the plaintiff in error, but it will not be necessary to notice them severally, as they will, for the most part, be settled by the determination of the principles of the case.

It is not questioned that the steamship company filed its tariff rates with the Interstate Commerce Commission, and otherwise complied with the acts of Congress and the regulations of the Interstate Commerce Commission regulating interstate shipments. Under these circumstances, "the shipper as well as the carrier is bound to take notice of the filed tariff rates and that so long as they remain operative they are conclusive as to the rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false billing." Atkinson, etc., Ry. Co. v. Robinson, 233 U. S. 173, 180, 34 Sup. Ct. 556, 558 (58 L. Ed. 901). It is not pretended that there was any attempt at rebating or false billing in this case: nor is it claimed that there was any parol contract departing from the schedules and rates filed with the commission which has supremacy over the bill of lading; nor is it claimed that the purser was the agent of the shipper in obtaining the bill of lading. The shipper claims that he applied to the purser, as the agent of the carrier, to give him a bill of lading for two boxes containing furs, rugs, books, a musical instrument, etc. He admits notice of the filed tariff rates, and that both he and the carrier are bound by them, but says that the carrier, from negligence or other cause, issued to him a bill of lading which misdescribed the goods charged the wrong rate, and fixed an improper release valuation. The plaintiff never asked for, and the steamship company could not give, anything but the standard bill of lading. No other bill of lading was in contemplation of the parties. Neither did the plaintiff ask for any particular classification of his goods, nor for rates of any kind. Indeed,...