129 Va. 206 | Va. | 1921
delivered the opinion of the court.
This action was brought to recover the value of two boxes lost in interstate shipment, the contents and value of which are as follows:
On 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
Four. Oriental rugs ...........•....... 165.00
Two sofa pillows.................... 10.00
Total.........................$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, 1917, 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
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 five and a half 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 and 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, Montana, 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 five and a half 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 $10.00 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 re
The rate of freight on furs by themselves, or when packed with other goods, was sixty-nine cents; on household goods it was twenty-six 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.
In New York Central Railroad Co. v. Goldberg, 250 U. S. 85, 39 Sup. Ct. 402, 63 L. Ed. 857, a box of furs of the value of $693.75, plainly marked with the name and address of the consignee, and the word “Furs” conspicuously displayed thereon, was shipped by a fur manufacturer from New York city to Cincinnati. It was delivered to a local expressman whose driver delivered it to the defendant, and made out a bill of lading which the defendant signed. The bill of lading described the box as “1 case D. G.,” which admittedly meant “Dry Goods.” This misdescription wás the driver’s mistake, not made with intent to fraudulently misrepresent the nature of the merchandise. The carrier’s clerk who signed the bill of lading relied wholly upon the representations of the driver as to the contents of the case, not seeing the case itself. At that time the filed tariff rates provided a first class rate for dry goods of sixty-five cents per 100 lbs., and double first class rate of $1.30 per 100 lbs. for furs. As a result of the misdescription in the bill of lading, freight was charged at the smaller rate applicable to dry goods, instead of the higher one applicable to furs. No valuation was placed upon the goods and no
.In the case at bar, it is nowhere said, or intimated, that the plaintiff was guilty of any fraudulent conduct, but the defendant rests its defense chiefly on the ground that the bill of lading is a contract, and the plaintiff is bound by its terms. In the case just cited there was also a bill of lading, and yet the plaintiff was allowed to recover the full value of the goods. Here, as there, the bill of lading provides that “If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.” In both cases the standard bill of lading was issued. Without further discussion, it is enough to say
The judgment against the defendant should be credited by the additional freight to which the defendant is entitled, to-wit, five dollars and.forty-two cents. The judgment will be amended by crediting it with that sum, as of December 10, 1917, and as amended affirmed.
Affirmed.