Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Brown & Belford, for Appellant.
Withers & Withers, for Respondent.
By the Court, Ducker, J.:
This is an appeal from a judgment in favor of the respondent for the sum of $2,365.90 for damages for the destruction of certain personal property, consisting of wedding presents, furniture, and other household goods, belonging to respondent.
The appellant is a railroad company and a common carrier. The said personal property was received by it at Reno, Nevada, for shipment to Mina, Nevada, en route to its final destination at Manhattan, Nevada. A collision occurred between two of the railroad company's trains a short distance from Reno, and the car in which the said personal property was being carried was wrecked and burned and the property totally consumed by fire. Appellant admitted negligence and sought to make a partial defense. In the appellant's answer the following partial defense was pleaded:
That on or about August 14, 1917, said Nevada Transfer Company delivered to defendant at its depot in Reno, Nevada, for shipment and transportation over defendant's line of railroad from Reno, Nevada, and thence to Tonopah, Nevada, over the railroad of the Tonopah and Goldfield Company, a connecting carrier, en route to its final destination which was Manhattan, Nevada, certain personal property which defendant alleges, on information and belief, to have been the property of the plaintiff and the property mentioned and intended to be described by the complaint herein, as having been delivered to defendant for shipment by said
Nevada Transportation Company, which said property was contained in boxes and other packages, the contents of which were unknown to defendant except one cook-stove, and all of which property except said cook-stove was represented by the Nevada Transfer company to be household goods. That the said personal property was then and there delivered to defendant and by it received for shipment over its said line of railroad as aforesaid and a bill of lading made out and executed by and in behalf of said Nevada Transfer Company as shipper and by and in behalf of the said defendant, the said goods being consigned to the plaintiff, with destination indicated as Manhattan, Nevada. And defendant further alleges upon information and belief that, prior to the delivery of said personal property to defendant, said Nevada Transfer Company had by the person in possession and in control of the said property, and from whom said Nevada Transfer Company received it, and who was acting for and in behalf of the owner thereof, been hired and employed, authorized and directed to haul and carry the said personal property to the defendant at its depot in Reno, and to deliver said personal property to the defendant for shipment and consigned as aforesaid, and to make and enter into any necessary and proper contract or arrangement with defendant for the transportation of such property, including the making of a declaration of the value of said goods for the purpose of obtaining the lowest freight rates thereon under the schedules and classifications hereinafter alleged.
II. That on the said 14th day of August, 1917, and long prior thereto, the defendant and said Tonopah and Goldfield Railroad Company, its connecting carrier, had certain schedules of joint rates in force between Reno, Nevada, and Tonopah, Nevada, which said schedules had as parts thereof and attached thereto, the rules and regulations in force, including the classifications upon which said rates were made and based, and including a certain classification known as and called the Western Classification, and which schedules and classifications
provided for two different freight rates classified as household goods and shipped in less-than-carload lots. That the joint rate from Reno, Nevada, to Tonopah, Nevada, over the railroad of defendant and over the Tonopah and Goldfield Railroad on said 14th day of August, 1917, upon household goods, where the actual value of each article shipped did not exceed $10 per hundred pounds, or the proportionate amount thereof, if the weight was less than 100 pounds, subject to rule 2 of the Western Classification, was $1.55 per hundredweight, and that the freight rate upon household goods shipped in less-than-carload lots, whose actual valuation exceeded $10 per 100 pounds, subject to rule 2 of said Western Classification, was $2.32 1/2 per hundred pounds. That rule 2 of said Western Classification was and is as follows:
Rule 2. Ratings for various articles are conditioned upon actual valuations declared by the shipper at time and place of shipment; and the following stipulation must be entered in full on shipping order and bill of lading and signed by the shipper:
I. We hereby declare the value of the property herein described to be ________ per __________.
______________________________ [Shipper's signature.]
Where shipper refuses to declare value at time and place of shipment, goods will not be accepted for transportation.'
That the said Western Classification and schedules of freight rates and tariffs were on the said 14th day of August, 1917, and long prior thereto, contained in printed schedules filed by and in behalf of the defendant and said Tonopah and Goldfield Railroad Company and on file with the Railroad Commission of Nevada, and that two copies of said schedules for the use of the public were then on file and kept on file in each of the depots, stations and offices of the defendant and of the Tonopah and Goldfield Railroad Company within the State of Nevada where passengers or freight were received for transportation, including the depots, stations and offices
at said Reno and Tonopah, and in such form and place as to be accessible to the public and where said schedules could be conveniently inspected, and that the rates and charges hereinbefore in this answer specified, were named in such schedules and were then in force.
III. That said personal property so delivered by said Nevada Transfer Company to defendant as aforesaid on August 14, 1917, and represented by it as aforesaid to be household goods and which defendant, according to its information and belief, alleges to have been of the kind of goods classified and described in said schedules of freight rates as household goods, was shipped in less than a carload lot, and that the total weight of the articles so delivered to defendant and received for transportation by it as household goods was 3,655 pounds. That the said cook-stove was shipped separately and weighed 225 pounds, and took a freight rate from Reno to Tonopah, in accordance with said tariff schedules of $1.28 per hundredweight. And defendant alleges on information and belief that said Nevada Transfer Company, the shipper of said personal property, knowing the classification of household goods, and that there were two freight rates thereon depending upon whether the value of said goods did or did not exceed $10 per 100 pounds and knowing the requirement of said rule 2 of said Western Classification that, where the rating of goods shipped was conditioned upon actual valuation, such valuation must be declared, and, desiring and intending thereby that only the lower of said freight rates should be charged and collected thereon, did declare, at the time and place of shipment, that the value of the property shipped (other than said ...