Adams Express Co. v. Allen

125 Va. 530 | Va. | 1919

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The assignments of error by the defendant raise but three questions for our consideration, which we will pass upon in their order as stated below.

[1] 1. Will it be considered that the defendant, at the time of its acceptance of the hog-cholera serum for transportation to the plaintiff, knew of the purpose for which the plaintiff had ordered the serum, namely, for use by him as a preventive treatment of his hogs for the disease of hog cholera, merely from the information given defendant at the time by the shipper, namely: that it was hog-cholera serum; that the words “please rush” appear on the face of the express receipt asked of and given by defendant; and that the shipper, at the time, urged upon the defendant the “importance of the prompt dispatch of the package on the Norfolk and Western train leaving * * * at 9:35 P. M.” of that day? Or was express notice, in so many words, of the use for which the article shipped was intended necessary to be given the defendant at the time of its acceptance thereof, before the defendant can be considered as having had knowledge at such time of such intended use?

The first portion of the question must be answered in the affirmative and the latter portion in the negative.

[2-4] As shown in evidence, as set forth in the statement preceding this opinion, hog-cholera serum is used but for one purpose only, and that is the purpose in question. In the absence in the record of any evidence showing that the deféndant may have had some other understanding of what was the use to which the serum might be put, it must be assumed that when defendant was informed that it was hog-cholera serum which it was asked to transport, that information also conveyed to it the further information that its intended use was for preventive treatment of hogs for the disease of hog cholera. That was the ordinary, the usual, and the only use to which such article could be put. It is well settled that special information does not have to be given to a carrier of the ordinary and usual use to which an article shipped is to be put in order to render the carrier liable for damages resulting from the loss of such ordinary and usual use, by reason of unreasonable delay in the transportation of the article. Indeed such rule has never been questioned since the leading case of Hadley v. Baxendale. Actual notice to the carrier of the precise use to which the article shipped is to be put has never been held by the authorities on the subject as requisite, except when damages are claimed for loss of some special use to which the article was intended to be put, different from its usual and ordinary use. And, even in such cases, information given the carrier of peculiar features of an article having a special, as well as an ordinary, use, or that information as given by the name of the consignee and the appearance of the article itself, may often be sufficient to charge the carrier with knowledge of the special use to which the consignee of the goods intends to put them. Story Lumber Co. v. So. Ry. Co., 151 N. C. 23, 65 S. E. 460, and cases therein cited; 8 R. C. L., sec. 28, p. 462.

[5] The only source from which we feel that any uncertainty could have arisen in the mind of the defendant in the instant case as to the intended use by the consignee of the hog-cholera serum, would have been over some uncertainty as to whether the consignee was a merchant or dealer in serum, rather than the intended user of it. But the evidence in the instant case excludes all probability of such an uncertainty having arisen, for there is nothing in the name of the plaintiff, the consignee, as it appears on the express receipt, or way-bill, in evidence to suggest that he was a merchant or dealer in the serum; and the other evidence in the case, noted in the statement preceding this opinion, negatives the idea that there was any merchant or dealer in the serum in the State other than the shipper, the Department of Agriculture of the State. It was easily in the power of the defendant to have shown that it had transported or expected to be called upon to transport shipments of such serum to others than intended users of it, if such had been the fact. In the absence of such proof, in accordance with the well-known rule on the subject of the inference to be drawn under such circumstances from evidence not in itself conclusive, the conclusion is irresistable that such was not the fact, and that there was no uncertainty on the subject in the mind of the defendant at the time of the contract of carriage and that it knew that it was to transport the serum to the plaintiff for his use and for the ordinary and only use aforesaid to which it was expected to be put.

[6] 2. The purpose for which the serum was intended to be used, being the ordinary (and indeed the only) purpose for which it is used, and that purpose being actually or constructively known to the defendant at the time of the contract of carriage, are the damages which the plaintiff recovered by the verdict and judgment under review, general or special damages ?

In such case it is obvious that the damages in question are general and not special damages.

The damages in the case before us arose, not out of any special circumstances not likely to have been in contemplation of the parties at the time they made the contract, but they arose “naturally — that is, according to the usual course cf things — from the breach of the contract itself,” and were such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Hadley v. Baxendale, supra (9 Exch. 341, 23 L. J. Exch. 179, 18 Jur. 358, 5 Eng. Cas. 502). They fall directly under the" definition of general damages in the leading case just cited and quoted. Such rule is in force in this State as well as generally elsewhere. Kendall Bank Note Co. v. Commonwealth Saving Fund, 79 Va. 573; 8 R. C. L. sec. 25, p. 455.

[7] As said in 3 Sutherland on Damages (3rd ed.), section 913: “Damages are given against a carrier with reference to a particular use for which property is delivered for transportation when such use is brought to his notice at the time of contracting. In a late English case the principle is stated, and said to be settled, that whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to him from which the object ought in reason to be inferred, so that it may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object.”

As pointed out above, the property delivered for transportation in the case before us had but one use; and that was also its particular, and ordinary, as well as its only possible use. Hence, the statement of the law by the learned author last quoted is directly applicable to the case before us.

The case is the same in principle as those involving delay in transportation of traveling theatrical companies or their properties, in which the authorities are generally in accord in holding the carrier liable for damages occasioned the consignee by the loss of the peculiar use to which the theatrical company and their properties would have been put but for the unreasonable delay in their transportation. As held in these cases, in substance, while the use in question is peculiar and the resultant damages for the loss of such use are peculiar, as compared with such cases involving delay in delivery of a different character of shipments, the damages are not for that reason special damages. The damages are different from the ordinary damages in cases of delay in the transportation of ordinary merchandise, but they are, nevertheless, but the ordinary damages from delay in the transportation of such peculiar kind of freight. Weston v. Boston, etc., R. Co., 190 Mass. 298, 76 N. E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825; Illinois Cent. R. R. Co. v. Byrne, 205 Ill. 9, 68 N. E. 720. See also 1 Sutherland on Damages, sec. 50, and cases of Hammer v. Schoenfelder, 47 Wis. 455, 2 N. W. 1129, and Jones v. George, 61 Tex. 345, 48 Am. Rep. 280, cited in such section and in the note thereto at p. 150, for the same principle involved in the determination of what are special and what general damages in cases of breach of contract other than contracts of carriage.

The defendant especially relies on the case of Chapman v. Fargo, 223 N. Y. 32, 119 N. E. 76, L. R. A. 1918 F, 1049, Ann. Cas. 1918 E, 1054, as sustaining a contrary view of the law. But an examination of that case discloses that it sustains, in principle, the view above expressed. That case involved the shipment of a moving-picture film and the court held that it did not fall within the principle under consideration, because, while the carrier was held to have had notice at the time of the contract of carriage that the films were to be exhibited by some one, yet, in view of the fact that such films are sent out originally by a central company and are shipped from one place of exhibition to another and finally back to the original sender, it was held that the carrier had no notice that the plaintiff and consignee was to be the exhibitor; or that he owned a theater for which exhibition of the films on an important holiday like Christmas had been specially advertised; or that such films possessed such particular attractiveness for the public that they could not be readily replaced; or that on failure to deliver them on a certain day it would be necessary to close the theater or supply their place with films less attractive and less profitable. And the court refers to the theatrical company or scenery cases above cited with approval, distinguishing the case before it from them on account of the features of the facts to which we have above adverted. In this connection the court, in the Fargo Case, has this to say concerning the theatrical company or scenery cases aforesaid : “But the decisions in those cases are entirely in accordance with the general rules which have been stated. As was pointed out in the Weston Case, the ordinary result of failure to transport a traveling theatrical company or its properties, would be prevention of a performance and the loss of expected returns from such entertainment would not be special profits or damages, but ordinary damages such as were to be anticipated.” And the same is true in the case before us of the loss of the expected benefit from the use of the hog-cholera serum.

A great number of other cases are cited and relied on by the defendant. But all of them are either cases involving the transportation, of parts of mill machinery, as to which the rule has been settled, since the Hadley and Baxendale Case, that loss of profits resulting from the shutting down of the mill cannot be recovered as general damages; or they involve transportation of articles of which the intended use was unusual, being different from their ordinary use; or the damages claimed were unusual, being different from those which would ordinarily arise from the loss of the ordinary use of the article. These cases involve the transportation of articles and claims of special damages for loss of special uses of them, of the character which may be briefly alluded to as follows: Harper Furniture Co. v. So. Express Co., 148 N. C. 87, 62 S. E. 145, 30 L. R. A. (N. S.) 483, 128 Am. St. Rep. 588, shaft for mill machinery; So. R. R. Co. v. Langley, 184 Ala. 524, 63 So. 545, empty bottles — unusual use and damages; So. R. R. Co. v. Moody, 169 Ala. 292, 53 So. 1016, stoves^ — unusual use and damages; Pilcher v. Central of Georgia Ry. Co., 155 Ala. 316, 46 So. 765, material for making boxes — unusual use and damages; Murrell v. Pacific Ex. Co., 54 Ark. 22, 14 S. W. 1098, 26 Am. St. Rep. 17, fruit trees — loss of special contract of sale; Williams v. Atlantic Coast Line, 56 Fla. 735, 48 So. 209, 24 L. R. A. (N. S.) 134, 131 Am. St. Rep. 169, orange boxes —loss due to ensuing illness of men employed to pick the oranges; Produce Reporter Co. v. Adams Ex. Co., 176 Ill. App. 74, 77, credit book shipped in part performance of special contract — loss of the special contract; Stone v. Adams Ex. Co. (Ky.), 122 S. W. 200, shaft for machinery in electric plant; Franklin v. L. & N. R. R. (Ky.), 116 S. W. 765, trunk of goods intended to be followed and sold by plaintiff — loss of time and expenses of latter; Mather v. Am. Ex. Co., 138 Mass. 55, 52 Am. Rep. 258, architect’s plan for house, but contents of package undisclosed in any way to defendant; U. S. E. Co. v. Root, 47 Mich. 231, 10 N. W. 351, printed posters advertising time, place, etc., of concert to be given by plaintiff, but contents of package undisclosed in any way to defendant; Am. Ex. Co. v. Burke, 104 Miss. 275, 61 So. 312, broken part of printing press shipped as model for duplication of the part — same in principle as mill machinery shipment; Dunne v. St. Louis, etc., 166 Mo. App. 372, 148 S. W. 997, wagons and buggies to be sold during a certain session of court — no notice to defendant of special purpose of shipment; Higgins v. U. S. Ex. Co., 83 N. J. L. 398, 85 Atl. 450, castings for mill machinery; Har ris v. Fargo (Sup.), 113 N. Y. Supp. 577, camping outfit — notice to the defendant that early delivery was “urgent,” but none that a camping party would be at the expense of staying at a hotel awaiting arrival of outfit; Lichenstein v. Frgo, 66 Misc. Rep. 149, 121 N. Y. Supp. 327, millinery goods of which acceptance refused by consignee — delay in notice of return — loss due to change of style, of the likelihood of which the defendant had no notice; Cent. R. R. Co. v. Johnson, 116 Tenn. 624, 94 S. W. 600, piping — unusual use — notice that the piping was “needed very badly,” but not for what use — loss that of a special contract of pumping oil; Pacific Ex. Co. v. Darnell, 62 Tex. 639, a part of mill machinery.

As to details of fact concerning the quantum of damages, such as, in the instant case, the number of hogs the plaintiff might lose because of unreasonable delay in the transportation of the serum for their treatment and the value of such hogs, the law never requires notice of such details as a basis for recovery of such damages. The sole requisite as to the general damages recoverable is that they must arise “naturally — that is, according to the usual course of things —from the breach of the contract itself,” as aforesaid, for then they are “such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it,” as aforesaid. Hadley v. Baxendale, supra. It is not required that the parties should have then actually considered such damages. The law in such case itself draws the conclusion that they were so considered on the ground that it may be fairly supposed they were so considered. 8 R. C. L., sections 25 and 26, pp. 458-9.

[8] 3. Do the provisions in the face and on the back of the express receipt set forth in the statement preceding this opinion limit the liability of the defendant to the sum of fifty dollars?

This question must be answered in the negative.

This is not a ease in which there was a declared or released valuation of the article shipped. The amount of “fifty-six and 75/100 dollars,” is entered in the express receipt as the “C. O. D.” charges which the carrier was to collect; and there is no “inserting” of the words “not exceeding $50,” as the value by which the rate of charge for transportation was to be fixed, and “in which case the company’s liability is limited to an amount not exceeding the value so declared or released,” as stipulated, in the “note” on the face of the receipt. In view of such express provisions, those on the back of the receipt set forth in the statement preceding this opinion are ambiguous, and it is not clear therefrom or from the other provisions on the subject. on the face of the receipt that there was in fact any actual reduction of rate of charge in view of an actually agreed valuation of the article shipped'— i. e., it is not entirely clear that this particular contract attempted to limit the liability of the carrier.

But if it were conceded that the contract of carriage attempted to limit the liability of the defendant to the sum of-fifty dollars, in consideration of the rate of charge for the transportation of the property notwithstanding some difference of opinion on the question when it arose under another statute (see Richmond & Danville R. R. Co. v. Payne, 86 Va. 481, 10 S. E. 749, 6 L. R. A. 849, and C. & O. Ry. Co. v. Beasley, 104 Va. 788, 52 S. E. 566, 3 L. R. A. [N. S.] 183), the rule in this State is now firmly settled that under our statute (sub-section 24 of section 1294-c, 1 Pollard’s Code, 1904 — which was enacted subsequently to the decisions last cited and is in addition to and different in its phraseology from the statute in this State on the subject previously existing, sec. 1296, Code 1887; sub-sec. 25 of sec. 1294 — c, 1 Pollard’s Code 1904), as to intrastate shipments, such attempted limitation of liability is void where the injury or loss is occasioned by the negligence or misconduct of the carrier. C. & O. R. Co. v. Pew, 109 Va. 288, 64 S. E. 35; So. Ex. Co. v. Keeler, 109 Va. 459, 64 S. E. 38. We cannot be governed, therefore, by a contrary rule in other jurisdictions, which is unaffected by such a statute as we have in Virginia, and hence a discussion of authorities from such jurisdictions relied on by defendant would be fruitless and will not be here entered upon.

[9] 4. What is said above disposes of all of the assignments of error save one, which, as stated in the petition, is that the court below erred “in admitting over defendant’s objection certain illegal evidence offered by the plaintiff.” Neither in the petition nor in brief for defendant is such evidence pointed out. Therefore, under our rule on the subject, such assignment of error will not be considered.

On the whole, therefore, we find no error in the judgment' complained of, and it will be affirmed.

Affirmed.