Southern Express Co. v. Keeler

109 Va. 459 | Va. | 1909

Whittle, J.

(after stating the foregoing facts), delivered the opinion of the court.

' In its main features, this case is ruled by the decision in Chesapeake & Ohio Railway Company v. Pew, ante, p. 288, 64 S. E. 35, in which an opinion was handed down at the present term. Both cases arose under the concluding sentence of the first paragraph of section 1294c (24), Ya. Code, 1904, which provides, that “no contract, receipt, rule, or regulation shall exempt any such common carrier, railroad or transportation company from the liability of a common carrier which would exist had no contract been made or entered! into.”

An express company is declared to be a “transportation company,” by our statute, and is, therefore, expressly included in the foregoing enactment. Section 1294a (2).

The fundamental error in the contention in favor of the limited liability of the express company in the present instance consists in assuming that the rights of the parties are as at common law, ignoring the provisions of section 1294c (24). It is Well settled that, while at common law a common carrier could not contract against his own negligence, he could qualify his liability as quasi insurer by special acceptance upon such reasonable terms and conditions as might be agreed upon with the shipper, provided they were not incompatible with his duty to the public. But it was the manifest purpose of the legislature, by the language quoted, to deprive the common carrier of the right to thus limit his liability and to relegate him to his common law rights and responsibilities, independent of contract.

It need only be observed, in conclusion, that the agreed facts do not sustained' the remaining contention, that the plaintiff obtained a cheaper rate for the transportation of her trunk by fraudulent concealment of its true value.

The agent of the express company received the trunk from the owner, removing it from the upper to the lower floor of the house in Petersburg a.t which she was staying, and went away, promising to return for the trunk later, but without making any inquiry as to its value, or imparting any information on the subject of rates. The company was afterwards three times requested by ’phone to call for the trunk, but n'eglected to do so; and it was finally sent to the express office by a negro driver. When asked the value of the trunk, the driver truthfully answered that he did not know.

Fraud cannot be predicated of such a state of facts, and the mere acquiescent acceptance by the shipper of a bill of lading prepared by the express company with the customary stamp, “value asked and not given.”

We are of' opinion that the judgment of the La.w and Equity Court of the city of 'Richmond is without error, and must be affirmed.

yl ¡firmed.