Chesapeake &. Ohio Ry. Co v. Porter

Citation152 S.E. 335
Case DateMarch 20, 1930

152 S.E. 335

CHESAPEAKE &. OHIO RY. CO.
v.
MARTIN & PORTER et al.

Supreme Court of Appeals of Virginia.

March 20, 1930.


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.

CAMPBELL, J.

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: "Nor can the period of limitation be extended for lack of discovery of the loss. Negligence and unnecessary delay in the assertion of claims for losses in transportation are the evils against which the limitation provides."

In Davis v. Rodgers it was unnecessary to a decision...

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12 practice notes
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...re Kanawha Valley Bank, W.Va., 109 S.E.2d 649, this Court, citing Chesapeake and Ohio Railway Company v. Martin, 154 Va. 1, 143 S.E. 629, 152 S.E. 335, used this language: 'Obiter dicta or strong expressions in an opinion, where such language was not necessary to a decision of the case, wil......
  • Kanawha Val. Bank, In re, No. 10952
    • United States
    • Supreme Court of West Virginia
    • April 28, 1959
    ...to a decision of the case, will not establish a [144 W.Va. 383] precedent. Chesapeake & O. R. Co. v. Martin, 154 Va. 1, 143 S.E. 629, 152 S.E. 335. Page 670 Many of the decisions of this Court and of the Supreme Court of Appeals of Virginia are cited in Footnote 15, Page 190, in support......
  • Chesapeake Ry Co v. Martin, No. 155
    • United States
    • United States Supreme Court
    • April 13, 1931
    ...that the court was obliged to disregard it and overrule the demurrer of the evidence. The judgment was affirmed on appeal. 143 S. E. 629; 152 S. E. 335. The provision of the bill of lading that claim for loss in case of failure to deliver must be made within six months after the lapse of a ......
  • Almond v. Gilmer
    • United States
    • Virginia Supreme Court of Virginia
    • September 8, 1948
    ...different, the doctrine of stare decisis does not apply. Chesapeake & O. R. Co. v. Martin and Porter, 154 Va. 1, 143 S.E. 629, 152 S.E. 335; Morison v. Dominion National Bank Etc., 172 Va. 293, 1 S.E.2d 292; Home Brewing Co. v. Richmond, 181 Va. 793, 27 S.E.2d 188. Since that adjudicati......
  • Request a trial to view additional results
12 cases
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...re Kanawha Valley Bank, W.Va., 109 S.E.2d 649, this Court, citing Chesapeake and Ohio Railway Company v. Martin, 154 Va. 1, 143 S.E. 629, 152 S.E. 335, used this language: 'Obiter dicta or strong expressions in an opinion, where such language was not necessary to a decision of the case, wil......
  • Kanawha Val. Bank, In re, No. 10952
    • United States
    • Supreme Court of West Virginia
    • April 28, 1959
    ...to a decision of the case, will not establish a [144 W.Va. 383] precedent. Chesapeake & O. R. Co. v. Martin, 154 Va. 1, 143 S.E. 629, 152 S.E. 335. Page 670 Many of the decisions of this Court and of the Supreme Court of Appeals of Virginia are cited in Footnote 15, Page 190, in support......
  • Chesapeake Ry Co v. Martin, No. 155
    • United States
    • United States Supreme Court
    • April 13, 1931
    ...that the court was obliged to disregard it and overrule the demurrer of the evidence. The judgment was affirmed on appeal. 143 S. E. 629; 152 S. E. 335. The provision of the bill of lading that claim for loss in case of failure to deliver must be made within six months after the lapse of a ......
  • Almond v. Gilmer
    • United States
    • Virginia Supreme Court of Virginia
    • September 8, 1948
    ...different, the doctrine of stare decisis does not apply. Chesapeake & O. R. Co. v. Martin and Porter, 154 Va. 1, 143 S.E. 629, 152 S.E. 335; Morison v. Dominion National Bank Etc., 172 Va. 293, 1 S.E.2d 292; Home Brewing Co. v. Richmond, 181 Va. 793, 27 S.E.2d 188. Since that adjudicati......
  • Request a trial to view additional results

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