Southern Ry. Co v. Seymour

• Decision Date: 18 March 1920
• Citation: 102 S.E. 559
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. FINLEY & SEYMOUR.

102 S.E. 559

SOUTHERN RY. CO.

v.FINLEY & SEYMOUR.

Supreme Court of Appeals of Virginia.

March 18, 1920.

Error to Corporation Court of Danville.

Action by Finley & Seymour against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Withers, Brown & Leigh, of Danville, for plaintiff in error.

P. J. Hundley and W. H. Rogers, both of Danville, for defendants In error.

PRENTIS, J. The Southern Railway Company complains of a judgment in favor of Finley & Seymour for damages to mules shipped from Lexington, Ky., to Danville, Va., caused by the alleged negligent failure of the company to supply them with sufficient food and water during the transportation. The company filed its demurrer to the plaintiffs' evidence, which the court overruled, and gave judgment for the plaintiffs.

There are three assignments of error.

The first is stated thus:

"The evidence shows that the said Cincinnati, New Orleans & Texas Pacific Railway Company was the initial carrier issuing the bill of lading covering the carload of mules in question in this case, and that therefore the said defendant is not a proper party, plaintiffs' right of action being against said initial carrier and it alone."

The company cites and relies on the case of Chesapeake & Ohio Ry. Co. of Indiana v. National Bank of Commerce, 122 Va. 471, 95 S. E. 454, and makes several quotations from the opinion, among them this language:

" * * * And in such case the first contract remains in force by virtue of said federal statute law, and the shipper and all assignees of his claiming through him (all of whom could have enforced such original contract) have no right of action for damages against such subsequent carrier, but only against the initial carrier."

When the language of any opinion is to be construed, the first consideration should be directed to the precise question which was before the court when the language was used. This being ascertained, then the language should be construed as relating to that question. The issue in the case of C. & O. Ry. Co. v. Bank, supra, was whether the Union Pacific Railroad Company or the Chesapeake & Ohio Railway Company of Indiana was the initial carrier. The shipment in that case originated at Medicine Bow, Wyo., and an order notify bill of lading was issued by the Union Pacific Railroad Company for the transportation of horses from that point to Windsor, N. C, by way of Chicago. It appeared, however, that there was a tariff regulation in existence, which had been filed with the Interstate Commerce Commission and was effective, which prohibited the movement of live stock east of Chicago on such a bill of lading. So that it was necessary, because of that lawful regulation, to stop the shipment at Chicago. Thereupon the owner entered into a new contract with the Chesapeake & Ohio Railway Company of Indiana for the shipment of the horses from Chicago to Windsor, N. C.; the original bill of lading being surrendered and a new one issued therefor by the Chesapeake & Ohio. The chief controversy in that case, then, was whether the Union Pacific or the Chesapeake & Ohio was liable as the initial carrier, and all that is said in the opinion must be construed in view of the fact that the court determined that the Chesapeake & Ohio was such initial carrier, and therefore subject to the responsibilities imposed upon initial carriers by the Carmack Amendment.

Every expression used in that opinion, which can be fairly construed as indicating that the connecting and delivering carriers of an interstate shipment cannot be sued for their own negligence, was inadvertent and is disapproved. That question was not involved nor remotely considered in that case. It is perfectly well settled that a connecting or delivering carrier may be sued for its own defaults, and so far as we are advised there is no conflict of authority on this point.

In the case of Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, where it appeared that the shipment originated at Seymour, Ind., and that the Baltimore & Ohio Southwestern Railroad Company was the initial carrier, that the shipment was transported over the Central of Georgia Railroad Company, a connecting carrier, and reached its destination over the line of the Georgia, Florida & Alabama Railway Company, the delivering carrier, the first question raised is identical with that here involved, and is thus stated by the court:

"That the plaintiffs exclusive remedy was against the initial carrier, the Baltimore & Ohio Southwestern Railroad Company, under the Carmack Amendment of section 20 of the Hepburn Bill."

And the court disposes of that claim in this language:

"The first contention is met by repeated decisions of this court. The connecting carrier is not relieved from liability by the Carmack Amendment, but the bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation, and thus fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid. 'The liability of any carrier, in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment, so far as it is vahd under the act, ' Kansas Southern Ry. Co. v. Carl, 227 U. S. 639, 648 [33 Sup. Ct. 391, 57 L. Ed. 6S3]. See Adams Express Co. v. Croninger, 226 U. S. 491, 507, 508 [33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257]; C, C, C. & St. L. Ry. v. Dettlebach, 239 U. S. 588, 591 [36 Sup. Ct. 177, 60 L. Ed. 453]; Southern Railway v. Prescott, 240 U. S. 632, 637 [36 Sup. Ct. 469, 60 L. Ed. 836]; Northern Pacific Ry. v. Wall, ante [241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905]."

Among the instructive cases decided by the Supreme Court of the United States in which the connecting or terminal carrier has been sued and held responsible under the bill of Jading issued by the initial carrier are C, C,-0. & St. L. R. Co. v. Dettlebach, 239 U. S. 591, 36 Sup. Ct. 177, 60 L. Ed. 453, and Missouri, K. & T. R. Co. v. Ward, 244 U. S. 383, 87 Sup. Ct 617, 61 L. Ed. 1213. In the latter case this is said:

"The purpose of...