69 W. Va. 138 | W. Va. | 1911
Fielder & Turley brought this action against the Adams Express Company, in a justice’s court, to recover the value of certain goods, shipped to them over said company’s line from FTew York and lost. In that court, they recovered a judgment for $111.30. The defendant took an appeal to the intermediate court of Kanawha county. There a jury was dispensed with and the ease submitted to the court on a statement of facts agreed to, and a judgment was rendered for $114.55, with damages according to law. To this judgment the circuit court of Ka-nawha county awarded a writ of error, on which it was reversed and the case remanded to the intermediate court for further proceedings and final determination. Complaining of this, Fielder & Turley procured a writ of error from this Court to the judgment of the circuit court, on which lack of a sufficient bill of exceptions, want of a certificate of error as required by section 8 of chapter 135 of the Code, failure to apply for the writ in proper time or manner, lack of a writ of error from the circuit court or order therefor, the remand of the case to the intermediate court, and reversal by that court, are assigned as grounds' of error.
These assignments were made on an incomplete transcript. A supplemental record shows the issuance of a writ of error and supersedeas by the circuit court and acceptance of service thereof, as well as an order awarding the same. This sufficiently disposes of some of the argument found in the brief.
The bill of exceptions, embodying the agreement °as to the facts, was signed and certified in the vacation of the intermediate court, and an order entered in vacation purporting to make the same a part of the record. Alleged want of authority in the
On the petition for a writ of error presented to the circuit court, there is a certificate of an attorney stating that, in his opinion, there was error in the judgment of the intermediate court. This certificate was dated May SI, 1909. The bill of exception was signed by the judge on May 29, 1909. As the petition was certified before the bill of exception was signed or made a part of the record, it is contended that the certificate is void and the petition, therefore, insufficient. We see no force in this contention. The date is wholly immaterial. The petition could be prepared and dated in anticipation of what it was known the record Avould be, when made up.
The circuit court erred in refusing to retain and finally decide the case, and in remanding it to the intermediate court. As it was fully made up and could not be in any respect changed, since the facts had been agreed, there was no reason for remanding it and we think final judgment should have been rendered. Though section 21 of chapter 25 of the Acts of 1907 says “the circuit court may retain the case for trial or remand the same back to the said intermediate court to be further proceeded in and finally determined”, these general terms must be so construéd as to make them operate reasonably and justly. It must be assumed the legislature did not intend a useless and detrimental proceeding. After an appellate court has ascertained what judgment should have been rendered in a case fully made up, a remand for judgment involves both delay and risk of additional0 error as well as double work. Hence it is an idle, useless and injurious proceeding, which the legislature cannot be deemed to have intended, if the clause quoted can perform some other substantial purpose or 'function. While some effect must
We come now to the vital questions in the ease, the validity and application of a clause in the bill of lading, purporting to limit the liability of the express company to fifty dollars. This clause says the company shall not be liable in any event for more than fifty dollars, the amount stated therein as the value of the property shipped. It is one of the regular forms furnished by the company to its patrons in which such valuation is printed, together with the notice that there shall be no greater liability unless a greater value is stated in the bill. It bears a stamp saying “value asked and not given.” It was the practice of the company to leave a book of these bills -with the shippers and send its agent to receive the packages and put this stamp upon the bills, unless a greater value was declared. At least such was
Sections 2 and 20 of the Railroad Rate Act were passed by Congress and approved June 29, 1906. The first of these sections inhibits the receipt, by an interstate carrier, directly or indirectly, from any person or persons of a greater or less compensation for any service rendered than is charged or received from any other person or persons for doing the same or a like kind of traffic under substantially similar circumstances and conditions. The other makes such carrier liable for any loss, damage or injury to property received by it for transportation from a point in one state to a point in another, caused by it or any common carrier to which such property may he delivered or over whose line or lines it may pass, and provides that no contract, receipt, rule or regulation shall exempt such common carrier from the liability thereby imposed. They have been construed and enforced as prohibiting such limitation of liability. Ward v. Railway Co., 58 Mo. 226. See also Hutchinson’s Com. Car. (3 Ed.) section 548. In reaching this conclusion, the Missouri court merely gave its own interpretation of the statute. In our opinion, this construction goes beyond the necessary import of the terms used. They do not deal with the extent of liability or limitation thereof. Section 2 forbids discrimination. It does not prescribe a rule, requiring a rate based upon any particular standard, such as weight, volume or value, and inhibit departure therefrom. All other things being equal, it inhibits discrimination as between persons. We do not see how it can he said to inhibit a variation in rate.or liability on account of difference in value. That portion of section 22, to which we have referred, deals with the question of liability, not the measure or extent thereof. At least that is its primary or main purpose. It does not deal expressly with the limitation of
The limitation clause, in one of its aspects, is necessary to the protection of common carriers. In an action for loss, damage or injury, when no agreement has been made respecting the value of property, the carrier is at a great disadvantage in respect to the evidence of value. The shipper occupies a superior ground. Carriers have just and reasonable ground for requiring a specification of value, setting a limit beyond which no damages can be claimed, as a measure of protection against exorbitant and unjust demands. On the other hand, a shipper seeking or obtaining a valuation, below the actual value of the property for the purpose of obtaining a low rate, is guilty of an act of misrepresentation. Hence there is no hardship nor injustice in holding him bound by his representation or agreement as to the value. This contract of limitation, therefore, rests upon good solid reason and just considerations. The abolition thereof would have introduced a very great change in the methods of transportation, for purposes extending far beyond any indicated by the express terms of the act. It does not fall clearly within the inhibition of discrimination. At any rate, the express prohibition thereof is not adopted as a means of preventing discrimination, nor does it fall clearly within the purpose, respecting
This right to limit liability by agreement as to value is subject, however, in the opinion of many courts, to a very important qualification. The shipper is bound by his agreement on the principle of estoppel. One who avails' himself of an estoppel must have been misled by the opposite party. Hence, if the carrier agreed upon a valuation, known to be merely arbitrary and far below the actual value of the property, it cannot claim the status of a person misled to his injury. Accordingly, it has been held in many cases that a collusive or corrupt contract between the shipper and carrier, fixing 'the amount below the actual value of the property, is void and does not limit the liability of the latter. On the other hand, if the agreement has been made in good faith in accordance with what the parties deemed to be the actual value of the property, it is binding, or, if the shipper, without knowlclge of the carrier, has declared a false low valuation, he is bound by it on the principle of estoppel. See the opinion of Commissioner Lane, 13 I. C. C. Rep. 550, attempting to reconcile the apparently conflicting decisions, upon these principles.
The record in this case presents no evidence of a false value, collusively agreed upon. The body of the express receipt was filled out by an employe of the shipper and the two packages placed where the carrier’s agent was expected to find them. He did find them there, together with the receipt book in which the receipt therefor had been filled out and the value specified ■therein left unaltered. He placed his stamp upon the receipt, showing the date, the number of packages and that the value had been asked and not given. Having done this, he took the packages, and, in a few minutes afterwards, the manager of the stock and shipping departments found the receipt there, saw that the goods had gone and filed the receipt away. This amounted to a representation on the part of the shipper that the property was not of greater value than fifty dollars, and precludes the idea of collusion or a corrupt agreement as to the
One of the packages, having an actual value of $120.00, was delivered to the consignee, while the other, having an actual value of $105.50,.was lost. Under these circumstances, it remains to say whether the consignee may recover the entire fifty dollars or only a portion thereof, determinable by the ratio of the entire value of the goods to the whole amount of indemnity. By the great weight of authority the indemnity is to be apportioned. Joyce v. U. S. Express Co., 72 H. E. 865; Railway Co. v. Lesser, 46 Ark. 236; Goodman v. Railway Co., 71 Mo. App. 460; London Assurance Co., 167 U. S. 149. Hastily examined, the following decisions might be considered as inconsistent with this conclusion: Brown v. Steamship Co., 147 Mass. 58; Starnes v. Louisville Co., 91 Tenn. 516; Nelson v. Railway Co., 72 Pac. 642; but they are not. In all these eases, the valuations stipulated were by the package for merchandise, or head for live stock, which makes a very material difference, the agreement being separable and each piece of property or head of stock protected by a legally separate contract. Under this principle, the plaintiffs were entitled to recover, at the date of the judgment of the intermediate court, $23.44 and $1.40 interest, making a total of $24.84, for 'which amount judgment will be rendered as of the date of the judgment rendered by the intermediate court and with interest from that date.
It remains only to dispose of the question of costs. As the appellant in the intermediate court had not tendered the amount clue, it was not entitled to costs in that court. Gas Co. v. Holt, 66 W. Va. 516. Having successfully resisted the efforts of the plaintiff in error in this Court to reinstate the judgment reversed by the circuit court, the defendant in error substantially prevails here and is entitled to costs in this Court, if the amount in controversy brought the case within its jurisdiction. This amount was the judgment of the intermediate court, $114.55. Therefore, costs in this Court will be adjudged to the defendant in error here.
Reversed, and Judgment Rendered.
