N. Y., Phila. & Norfolk R. R. v. Chandler

Sims, J., after making the foregoing statement, delivered the following opinion of the court: The questions presented for our decision by the assignments of error will be disposed of in their order as stated below. [1, 2] 1. Are the instructions, referred to in the statement preceding this opinion, which were not certified by the judge of the trial court within the period of sixty days fixed by statute (Acts 1916, p. 722, now Code 1919, sec. 6252), a part of the record before us in this case? This question must be answered in the negative. The instructions are no part of the record in an action at law unless made so by bill of exceptions or certificate in accordance with the statutory requirements on that subject (Acts 1916, p. 722, now Code 1919, sec. 6252, or Acts 1916, p. 708, now Code 1919, sec. 6253). Section 6341 of the Code of 1919, under which the instructions in question were certified, has reference only to what is already a part of the record and merely authorizes selections from the record as already completed. It does not authorize any additions to the record. Barksdale v. Parker, 87 Va. 141, 12 S. E. 344. [3] 2. Is the loss and consequential damage which the plaintiff has suffered of the whole of the value of his goods, by reason of his loss of the sale of them, which he had made — 710 — at a stipulated price, caused by negligent delay in the transportation, followed by the subsequent conversion of the goods by the wrongful sale of them by the terminal carrier, within the operation of the “Carmack amendment,” which makes the initial carrier who receives goods for interstate transportation liable “for any loss, damage or injury to such property, caused by it or by any common carrier * * * to which such property may be delivered or over whose line or lines such property may pass?” U. S. Comp. St. §8604-a. (The question assumes for the present that the delay was negligent and that the conversion was wrongful.) This question must be answered in the affirmative. Indeed, such question is expressly decided in this State by the case of Norfolk Truckers’ Ex. v. Norfolk Co., 116 Va. 466, 82 S. E. 92. There, as in the instant case, the action was for the loss suffered by the plaintiff of the whole of the value of his goods, by reason of his loss of sale of the goods, which he had made at a stipulated price, caused by the negligent delay in the transportation, followed by the subsequent wrongful sale of the goods by the terminal carrier. In the opinion of this court in that case, delivered by Judge Harrison, in reference to the Carmack amendment and its application to such case, this is said: “We are of opinion that the amendment which makes the initial carrier responsible for ‘loss or damage or injury to goods’ is broad enough to cover a case of damage to the shipper by reason of delay. It would be a narrow construction of the statute to confine its operation to the actual loss of goods, or to their physical injury. The wrong for which the statute undertook to give a remedy was that done the shipper, and if the shipper has suffered loss by reason of the negligent or unreasonable delay of the carrier in the performance of its contract, it is just the same as though the loss had resulted from a physical injury to the goods or from the actual loss or disappearance of specific articles.” — 711 — 14] .As said in 10 C. J., sec. 404, A. pp. 284-5: “* * * if damage results from failure, without good excuse, to deliver the goods at their destination within a reasonable time, the carrier is liable for such damages * * * When a carrier undertakes to convey goods, the law implies a contract that they shall be delivered at destination within a reasonable time, in the absence of any special agreement as to the time of delivery. This duty, it is said, is as obligatory as the duty to deliver safely. And the principle applies, although there is a written contract for the shipment which contains no stipulation as to the time within which the goods are to be delivered. The law will, nevertheless, imply an understanding to carry within a reasonable time.” [5, 6] Where, as in the Norfolk Truckers’ Ex. Case and in the instant case, delay in the transportation has caused the loss of a sale at a stipulated price, such delay is the proximate cause of the loss to the plaintiff of the full value of the goods, where the subsequent action of the carrier in the wrongful sale of the goods has prevented the plaintiff from himself selling the goods on the market or taking any other steps to minimize the damage which he has suffered. It is true, with respect to the elements and measure of damages in actions involving the liability of carriers for delay in the delivery of goods, as said in 10 C. J., sec. 4446, pp. 307-8, cited and relied on for the railroad company. “Ordinarily” (the measure of damages is) “not the value of the goods. Delay in delivery of the goods, even though it is such as to render the carrier liable, does not constitute conversion, and the person entitled to the goods cannot on that account refuse to receive them and sue for the full value. The measure of damages is not the full value, since the bailor still retains the ownership, but the loss proximately caused by the delay. The carrier’s liability is to compensate for the damages growing out of — 712 — the delay, and.not for -loss; and the remedy.of the party entitled to the goods is to sue for the damages he has sustained by reason of the delay. The .rule proceeds on the theory that a party injured by the breach of a contract by another should take all reasonable steps to minimize the damage he will suffer.” But this is where there is the delay referred to merely, and the plaintiff still retains the ownership and control of the property, so that it is within his power to take some steps, such as aforesaid, to minimize the damages. Manifestly, such rule has no application to such a case as that before us. It is urged in argument for the railroad company that in the instant case the consignee refused to accept delivery at noon on July 24th, and that the consignor, on July 25th, refused to give any instructions for the disposition of the goods, or, if the latter be not true, that certainly the consignor did not give any instructions for the disposition of the goods within a reasonable time after the 24th of July, when he was notified of the arrival of the goods in Atlanta and the refusal of DeWald & Co. to accept delivery of them, which conduct of DeWald & Co. and the plaintiff, as is urged for the railroad company, terminated the relationship of the railroad company to the plaintiff as that of a carrier and reduced such relationship to that of a warehouseman; and that the subsequent action of the terminal carrier in selling the goods was that of a warehouseman, for which, even if wrongful, the defendant railroad company is not liable under the Carmack amendment (U. S. Comp. St. §§8604-a, 8604-aa) — citing N. & W. Ry. Co. v. Stuart Draft Co., 109 Va. 184, 63 S. E. 415; Hogan Milling Co. v. Union Pac.R.Co., 91 Kans. 783, 139 Pac. 397; Adams Express Co. v. Croninger, 226 U. S. 491, 506-7, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Adams v. Great Western R. Co., 181 Ia. 1052, 165 N. W. 367, L. R. A. 1918B, 622. — 713 — [7] The law is unquestionably settled, as appears from these authorities, that the. Carmack amendment does not make the initial carrier liable for a loss of or injury to .goods proximately caused by the conduct of the succeeding ■carrier while occupying the relationship of warehouseman; .and if, in the instant case, prior to July 28th, when possession of the goods was delivered to another for the sale of them, the liability of the railroad company as carrier had ceased — i. e., its relationship to the plaintiff as carrier had ceased — and the relationship of the terminal carrier to the plaintiff had become that of a warehouseman, it is unquestionably true that said amendment is not applicable to the case in so far as the damages occasioned the plaintiff hy the sale of the goods by the terminal carrier is concerned. .In such case the chain between the original negligence as carrier, in delaying the transportation, and the total loss .sustained by the plaintiff, would be broken, and the wrongful conduct of the terminal carrier in selling the goods would lose its character of being a mere incident to the original wrong and become itself the proximate cause of a part at least of the injury to the plaintiff, so that the plaintiff would not be entitled to recover in this action the whole of the damages claimed. But whether this is such a case depends, of course, upon whether the relationship of carrier aforesaid had terminated when the possession ■of the goods was delivered as aforesaid for sale, and that, therefore, is the crucial question in the case. As said in N. & W. Ry. Co. v. Stuarts Draft Co., just referred to: “It is not infrequently a question of some nicety to determine the precise time a,t which the liability ■of a railroad company as carrier ceases and that of warehouseman begins.” [8] This, however, which is quoted with approval in fhe opinion of this court in the case just mentioned, is said in 6 Cyc. 455: “The carrier remains liable until the goods — 714 — have reached their destination and the consignee has had reasonable opportunity (involving notice of arrival when such notice is essential to charge him with the, duty of taking the goods), to receive the goods from the carrier, and that, after the expiration of such reasonable time, the liability of the carrier, if the goods remain in his possession, is that of warehouseman only. The carrier is liable-only as warehouseman after the consignee has refused to receive the goods or while the goods are held by the carrier at the request and at the convenience of the consignee.” [9] And it must be borne in mind in the instant case that, under the terms of the bill of lading, the firm of DeWald & Co. was not the consignee. That firm, at the time they refused to accept delivery, at noon on July 24th, had no written order from the plaintiff authorizing the delivery to them, and hence it had no authority to refuse to accept the delivery. Therefore, the so-called refusal of DeWald' & Co. to accept delivery was nothing more than notice to-the railroad company that they would not put themselves in a position to accept delivery by paying for the goods, and thus obtain the written order aforesaid. Theretofore, DeWald & Co., as appeared from the bill of lading, was merely a conditional consignee. Thereupon the plaintiff became the unconditional consignee and, as such, he was entitled to notice of the arival of the goods, the refusal of DeWald & Co. to qualify as consignee, and a reasonable-time thereafter within which to make other disposition of the goods so as to have them taken from the hands of the-railroad company. A reasonable delay in delivery due to-such a cause must often arise in the transportation business, and this, in reason, and in accordance with the substance of the holding of the authorities on the subject, must be regarded as within the mutual contemplation of the-shipper and carrier at the time of the contract of carriage. This brings us to the next question for our decision, and that is this: — 715 — 3. Was the plaintiff given a reasonable time, between the notice to him on the afternoon of July 24th, of the arrival of the goods at destination and the refusal of the conditional consignee to qualify as such, and the delivery by the terminal carrier of the goods to another, on July 28th, for sale, within which to make other disposition of the goods ? This is a question of fact dependent upon all of the facts and circumstances in evidence in the case. The controverted question of fact, whether on receiving the notice in question the plaintiff expressly notified the railroad company “that the car in question would be handled,” as the plaintiff testified he did, or “that the car had been disposed of,” as Mr. Savage, a witness for the railroad company, testified, is an important one in this connection. The decision of this fact involved in this conflict of the testimony was peculiarly for the jury. The same is true of what occurred in the personal interview between the plaintiff and Mr. Savage on July 25th. The question of fact therein involved is whether the plaintiff by what he said to Mr. Savage on July 25th can be reasonably said to have justified the railroad company in receiving the impression that the plaintiff refused absolutely to give any instructions for other disposition of the shipment, and abandoned it to the railroad company to handle it. Then there is the statement in the letter of August 28th of the claim agent at Portsmouth of the terminal carrier, saying: “We immediately handled with the agent of the N. Y. P. & N. R. R. at Cape Charles and wrote you direct, requesting disposition, before disposal orders could be obtained, then shipment began to deteriorate, and I found it necessary to turn over to McCullough Bros, for handling, in order that the shipment might not become worthless * * *which tended to show that the railroad company never received the impression that the plaintiff had refused to give instructions — 716 — for disposition, but knew from what plaintiff told Mr. Savage on July 24th, that he was'at work endeavoring to make other disposition, which was to be expected to be made as soon as reasonably possible, and that the terminal carrier decided to sell the goods, not because the plaintiff refused or failed to give other disposition instructions, but because of a different reason altogether, namely: because, as alleged in said letter, the “shipment began to deteriorate and I found it necessary to turn over to McCullough Bros, for handling, in order that the shipment might not become worthless.” This is a self-serving declaration, long after the sale of the goods. It is not supported by a scintilla of evidence in the record. The witnesses who saw the potatoes in Atlanta make no mention of any deterioration in them, and the other testimony on the subject, which was introduced in behalf of the railroad company, gives as the sole reason for the low prices of potatoes in Atlanta after July 22nd and 23rd the general fall in prices, all as set out in the statement preceding this opinion. And there are other circumstances, which are set out in the statement just referred to, and hence need not be repeated here, which tend to show that the railroad company did not give the plaintiff the reasonable time in question and, indeed, did not itself act upon the supposition that it had done so. Moreover, it should be said on this subject, that, so long as the railroad company continued to occupy the relationship of carrier to the plaintiff, any deterioration in the goods due to the delay , in delivery was in truth proximately caused by the antecedent negligent delay of the carrier, and the carrier could not sell the goods because of such deterioration so as to escape liability for the result of such antecedent delay, and its sale of the goods because of such deterioration could only have been in recognition of such liability and in mitigation of the damages. And, as appears from said letter, in the light of the testimony in the case, the — 717 — sale was in fact made by the terminal carrier merely in apprehension of such deterioration and for the purpose of mitigating the damages. [10] We are of opinion, therefore, that there was ample evidence before the jury to support their verdict in finding that the reasonable time in question was not given, and hence that the relationship of the railroad company to the plaintiff still remained that of carrier at the time the potatoes were delivered over for sale, as aforesaid. It follows from this conclusion that the delay in transportation, aforesaid, was the proximate cause of the loss and damage suffered by the plaintiff, and the railroad company is liable therefor if the facts were that such delay was due to the negligence of the railroad company or of said terminal carrier (which is a conclusion of law if it was an unreasonable delay), and that such delay was the occasion of the loss of the sale to DeWald & Co. [11] This brings us to the next question before us for our decision, namely: 4. Is there sufficient evidence in the record to support the verdict of the jury, which found, in effect, that there was unreasonable delay in the transportation of the goods, and that that delay was the occasion of the loss of the sale by the plaintiff to DeWald & Co.; or is that finding contrary to the evidence? In the case of Norfolk Truckers’ Ex. v. Norfolk Co., supra (116 Va. 466, 82 S. E. 92), the transportation was from Herberts, Va., to Johnstown, Pa. The shipment was delayed in transit eight days beyond the usual period required for such transportation. Such delay in the instant case was, it is true, only four days. But otherwise the evidence in the Norfolk Truckers’ Ex. Case was much weaker than in that now before us to sustain the verdict of the jury for the plaintiff. — 718 — [12] As said of the transportation of inanimate goods in 10 C. J., sec. 420 (2), p. 301: “* * * when evidence of unusual delay is adduced, a prima, facie case of negligence is made out, and the burden then devolves on the carrier to explain the delay and to show that it arose from some cause other than the carrier’s negligence or that of its agents or servants.” We deem it sufficient to say in conclusion upon the subject under consideration that the material evidence bearing thereon, and the lack of evidence adduced by the railroad company in explanation of the unusual delay, at least while the shipment was in the hands of the terminal carrier, appears from the statement preceding this opinion; and we must hold, as we held in the Norfolk Truckers’ Ex. Case, supra, 116 Va. at p. 471, 82 S. E. 94, that “in view of the established facts and the reasonable inferences to be drawn from them, it cannot be said that the jury were without evidence to support their conclusion that there had been unreasonable delay in the carriage and delivery of the potatoes, and that such delay was the occasion of the” (conditional) “consignee’s refusal to accept the shipment; nor can it be said that the verdict found was a plain deviation from right and justice.” [13,14] There remains but one other question for our decision, and that is the following: 5. Is the verdict of the jury invalid because it estimated the damages on the basis of the price the plaintiff was to receive under the contract of sale to DeWald & Co., plus the other proximate damage consisting in this case in loss of interest, instead of following the general rule that the measure of damages for loss of the entire value of goods occasioned by delay in the transportation of them is the market value of the goods at the place of destination at the time when the delivery of them should have been made, plus the other proximate damage, consisting in this case in loss of interest? — 719 — This question must be answered in the negative. There is the following stipulation in the bill of lading in the instant case, namely: “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including the freight charges, if paid.” This value has been construed by the courts to mean the invoice price at which the goods are sold at the time and place of shipment, with freight added to the place of destination, if paid. Kelly v. Southern Railway, 84 S. C. 249, 66 S. E. 198, 137 Am. St. Rep. 842. While such stipulation might not be valid under the Cummings amendment of 1915 (Fed. Stat. Anno. 1916, Supp. pp. 124-5 [U. S. Comp. St. §§8592, 8604-a]) as against the shipper where there has been no such sale, or where such sale is defeated by the action of the carrier, and it appears in evidence that the stipulated value is less than the market value at destination at the time the goods should have there arrived, and the shipper seeks to recover such market value, no such ease is presented by the record before us. And such stipulation, with the construction placed upon it aforesaid, is certainly valid under the circumstances of the instant case, for in such case, in the absence of any stipulation on the subject, the law would fix the same measure of damages. As said in 10 C. J., sec. 611 (4), p. 399: “Where goods are shipped in pursuance of a sale thereof at a stipulated price which is less than the market price at destination, damages for loss or injury must be estimated on the basis of the price to be received under the contract of sale. But if the price contracted for is greater than the market value at destination, the estimate will have to be based on the market value, unless the carrier had been notified at the — 720 — time of the shipment of the fact that the goods had been sold for a higher figure.” In the instant case the stipulated price at which the goods were sold to DeWald & Co. at the time and place of shipment was much less than the market price at destination from July 16th to July 24th, inclusive; so that the market price at destination when the goods should have arrived was greater than the stipulated selling price, plus the freight, as appears in evidence. The case will be affirmed. Affirmed.