127 Va. 132 | Va. | 1920
delivered the opinion of the court.
There are three assignments of error.
The first is stated thus: “The evidence shows that the said Cincinnati, New Orleans and 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 C. & O. Ry. Co. of Indiana was the initial carrier. The shipment in that case originated at Medicine Bow, Wyoming, and an order-notify
In the case of Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 60 L. Ed. 948, 36 Sup. Ct. 541, where it appeared that the shipment originated at Seymour, Ind., and that the Baltimore and Ohio Southwestern R. Co. was the initial carrier, that the shipment was transported over the Central of Georgia Railroad Co., a connecting carrier, and reached its destination over the line of the Georgia,
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 Iáding issued by the initial carrier are: C., C., C. & 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, 37 Sup. Ct. 617, 61 L. Ed. 1213. In the latter case this is said: “The purpose of the Carmack amendment has been frequently considered by this court. It was to
The same rule is followed in the recent cases of John Lysaght Limited v. Lehigh Valley R. Co. (D. C.), 254 Fed. 353; Elliott v. Chicago, M. & St. P. Ry. Co., 35 S. Dak. 57, 150 N. W. 777; 10 C. J. 542. "
The question is controlled in this State by Code 1919, sec. 6250, so frequently construed, which provides that if, a variance between the evidence and the allegations appear, the court, if it considers that substantial justice will be promoted and that the opposite party cannot be prejudiced thereby, may allow the pleadings to be amended, or, instead of having the pleadings amended, may direct the jury to find the facts, and if it consider the variance such as could not have prejudiced the opposite party, may give judgment according to the right of the case; and also by Code, 1919, sec. 6104, which provides that the court may at any time in the furtherance of'justice and upon such terms as it may deem just, permit pleadings to be amended, and that at every stage of the proceedings the court shall disregard any error or defect which does not affect the substantial rights of the parties.
In this case there was no surprise whatever, because the company itself introduced the bill of lading which it now claims produces the variance. The case was fairly tried and submitted to the jury, the attention of counsel, court and jury being directed only to ascertaining the responsibility of the company as the delivering or terminal carrier. Whenever it is desired to raise a question of this charac
The judgment is plainly right.
Affirmed.