Richmond & D. R. Co v. Payne

• Decision Date: 30 January 1890
• Citation: 10 S.E. 749,86 Va. 481
• Court: Virginia Supreme Court
• Parties: Richmond & D. R. Co. v. Payne.

10 S.E. 749

(86 Va. 481)

Richmond & D. R. Co.

v.Payne.

Supreme Court of Appeals of Virginia.

Jan. 30, 1890.

Carriers—Limiting Liability —Bill of Particulars.

1. An agreement limiting the liability of a railroad company to a shipper to a certain amount, in case of loss or damage occurring through the negligence of the company, in consideration of a reduced rate of transportation, is valid, though the property is worth much more than that amount, and though by Code Va. 1s87, § 1396, an agreement to "exempt" the company from liability occasioned by its own neglect is invalid.

2. A bill of particulars is not to set forth matters of evidence, but to inform the opposite party of the cause of action to be relied on, and which is not plainly set out in the pleadings, and, if the pleadings clearly state the case, there is no error in refusing to order a bill of particulars.

Chas. M. Blockford, for plaintiff in error. Thos. S. Martin and Geo. Perkins, for defendant in error.

Lewis, P. This is a writ of error to a judgment of the circuit court of Albemarle county, rendered in an action of trespass on the case wherein A. D. Payne was plaintiff, and the Richmond & Danville Railroad Company was defendant. The declaration alleges that on the 26th day of May, 1888, the plaintiff delivered, to the defendant company at Charlottesville, eight horses, in sound and good condition, and of the aggregate value of $3,000, to be transported to the city of Philadelphia; that at the same time and place one j. B. Andrews delivered to the defendant eight other horses, to be likewise transported to Philadelphia; that all of the horses were on the same day placed by the servants of the defendant in a box-car stationed on a side track, and that, after the car had thus been loaded, it was suddenly and violently, and without any notice or warning, struck by one of the defendant's locomotives, which was then and there carelessly and negligently governed, which forced the car a considerable distance on the side track from its original position, causing great damage to the horses, and to the plaintiff himself, who was in the carat the time; and the declaration claims damages on account thereof to the amount of $3,000. Upon the delivery of the horses, and before the collision occurred, a bill of lading was issued by the defendant, signed by its station agent at Charlottesville, and by Andrews, for Payne & Andrews, wherein it was recited "that whereas, the Richmond & Danville Railroad Co. and connecting lines transport live-stock only at certain tariff rates, except when in consideration of a reduced rate the owner and shipper assumes certain risks specified below, now, in consideration of said railroads agreeing to transport the above-described live-stock at the reduced rate of $44 per car to Philadelphia, and a free passage to the owner or his agent on the train with the stock, (if shipped in car-load quantities,) the said owner and shipper does hereby assume and release the said railroads from all injury, loss, and damage or depreciation which the animal or animals, or either of them, may suffer in consequence of either of them being weak or escaping, or injuring itself or themselves, or each other, or in con sequence of overloading, heat, suffocation, fright, viciousness, and from all other damages incidental to railroad transportation, which shall not have been caused by the-fraud or gross negligence of said railroad companies." And then, among other things, it was further stipulated as follows: "And it is further agreed that, should damage occur for which the companies may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed, for a * * * horse, $100." There was evidence at the trial tending to show that the horses injured were worth much more than $100 each, and it is conceded that the damage was caused by the negligence of the defendant's agents. The jury, after hearing the evidence, returned a verdict for the plaintiff for $2,485 damages, upon which judgment was entered; whereupon the defendant company obtained a writ of error and supersedeas.

The first assignment of error is that the circuit court erred in overruling the defendant's motion that the plaintiff be required to file a bill of particulars. The motion was made under section 3249 of the Code, which enacts that, "in any action or motion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defense, and, if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration, or other pleading of such party so plainly as to give the adverse party notice of its character." We think the case is stated in the declaration with sufficient fullness to apprise the defendants of its character, and that there was no error in overruling the motion. The office of a bill of particulars is, not to set forth matters of evidence, but to inform the opposite party of the cause of action to be relied on at the trial, and which is not plainly set out in the pleadings; and, although it is ordinarily within the discretionary power of the court to order a bill of particulars, yet the power is much less frequently exercised in actions of tort than in actions ex contractu, as the general rule in tort is that, if a pleading is not sufficiently specific, the remedy is by demurrer. Garfield v. Paris, 96 U. S. 557; Higenbotam v. Green, 25 Hun, 214.

The second assignment of error involves a more important question. It relates to the refusal of the circuit court to instruct the jury that in assessing damages against the defendant the estimate should be made "upon the supposition that each horse, in its sound condition, was only worth the sum of one hundred dollars." And this raises the question whether or not the provision in the bill of lading above quoted constitutes a valid contract, whereby the liability of the...