Chesapeake &. Ohio Ry. Co v. Porter
| Decision Date | 20 March 1930 |
| Parties | CHESAPEAKE &. OHIO RY. CO. v. MARTIN & PORTER et al. |
| Court | Virginia Supreme Court |
Error to Law and Equity Court, Part 2, of City of Richmond.
On rehearing.
Former opinion adhered to.
For former opinion, see 143 S. E. 629.
Leake & Spicer, of Richmond, for plaintiff in error.
J. F. Hall, of Richmond, for defendants in error.
This case was decided by this court on June 14, 1928 (143 S. E. 629), and the judgment of the lower court was affirmed. A rehearing was granted plaintiff in error, and thus the case is before us again. The facts are fully set forth in the former opinion.
The main contention of the railway company is that the former decision of this court is in conflict with the decisions of the United States Supreme Court, as well as former decisions of this court.
The decision upon the former hearing was placed upon two theories: First. That the evidence was, upon a demurrer thereto, sufficient to justify the trial court in holding that the notice required by the bill of lading was given in a reasonable time; Second. That under the facts and circumstances of this case, Martin and Porter should be permitted a recovery for the loss of the potatoes, which was directly due to the negligence of the defendant in the nondelivery of the car of potatoes, and that the company is estopped from asserting the defense of lack of notice.
An examination of the cases relied upon by the company do not, in our opinion, sustain the contention that the law is that in every case a failure to give the required notice within the time limit fixed in the bill of lading precludes a recovery. It is true that in Georgia, F. & A. R. Co. v. Blish Mill. Co., 241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948, strong expressions are used denying the applicability of the doctrine of estoppel, but such language was not necessary to a decision of the case. This was the view of justices McReynolds and Van Devanter in Texas & P. R. R. Co. v. Leatherwood, 250 U. S. 478, 39 S. Ct. 517, 63 L. Ed. 1096.
Davis v. Rodgers, 139 Va. 618, 124 S. E. 408, 410, is also relied upon. That case quotes from Kahn v. American Ry. Exp. Co., 88 W. Va. 17, 106 S. E. 126, this language:
In Davis v. Rodgers it was unnecessary to a decision to invoke the doctrine of estoppel. In the opinion it is...
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