Appalachian Electric Power Co. v. Virginian Ry. Co.
| Decision Date | 14 March 1944 |
| Docket Number | C. C. No. 675. |
| Citation | 29 S.E.2d 471,126 W.Va. 626 |
| Parties | APPALACHIAN ELECTRIC POWER CO. v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Campbell, McClintic & James, Stanley E Dadisman, and Lee M. Kenna, all of Charleston, for plaintiff.
Brown Jackson & Knight, Robert G. Kelly, and Frank R. Lyon Jr., all of Charleston, for defendant.
ROSE President.
In the action in assumpsit of Appalachian Electric Power Company against The Virginian Railway Company the Circuit Court of Kanawha County, on its own motion, has certified to this Court the questions of law arising upon the overruling of a demurrer to a special plea.
The action is for alleged damages to four electric transformers of the plaintiff shipped by the plaintiff from Kopperstown in Wyoming County, a station on the defendant's railroad, to itself at Cabin Creek Junction, in Kanawha County, a station on the railroad of The Chesapeake and Ohio Railway Company. On arrival at the latter station the transformers were admittedly in some degree damaged, and are alleged to have received this injury after delivery to the defendant at Kopperston and before leaving the point of shipment.
The special plea in question sets forth in considerable detail what the defendant alleges to be the full facts in the case. Particularly it shows that the shipment was delivered May 15, 1940, and that no claim in writing or otherwise was made against the defendant until July 25, 1941, whereas, Section 2(b) of the bill of lading under which the shipment was made contained this provision:
The plea further shows that at the time of delivery of the transformers to the plaintiff as consignee, its agent called the attention of the agent of The Chesapeake and Ohio Railway Company to their damaged condition, advising him, however, that the amount of damage could not be ascertained until repairs were made; that the delivering company's agent then voluntarily, and not at the request of the plaintiff or of its agent, made the following notation on the freight bill receipted and delivered to the plaintiff: "Transformers damaged when received and delivered extent not yet determined signed J. J. Murray Agent"; that the said railway agent on the same day, not at plaintiff's request but as a part of the office routine and in compliance with the instructions of his employer, prepared and sent to the general claim agent of The Chesapeake and Ohio Railway Company, on a form prescribed by that company for that purpose, a report of damages to the same effect, a copy of which report was also sent by Murray to an agent of the defendant at Mullens, Wyoming County, who, it is alleged, knew of the damage before the transformers left the shipping point, and which copy was by said defendant's agent sent to, and received by, the general claim agent of the defendant at Norfolk, Virginia; and that the sole and only claim in writing for damages was by a letter from an agent of the plaintiff dated July 23, 1941.
The demurrer to the plea assigned grounds in support thereof as follows:
Section 2(b) of the bill of lading appears to be in compliance with the Federal Interstate Commerce Act, 49 U.S.C.A. § 20(11), which is in part as follows:
"*** Provided further, That it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulation, or otherwise a shorter period for the filing of claims than nine months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice: ***."
This Federal statute affects directly only interstate shipments, but railways doing both interstate and intrastate business use this common form for both types of business. No statute of this State is pointed out which would forbid, directly or indirectly, the inclusion in a freight bill of lading covering intrastate shipments in this State, of said Section 2(b). Code, 24-3-2, forbids discrimination between patrons of a public utility and the defendant argues here that, to allow an action on this claim for which no claim in writing has been filed within the nine-months period, would be such discrimination.
Although there is no statute, Federal or local, which compels the inclusion of Section 2(b) in a bill of lading, yet there is no statute which, directly or indirectly, forbids such inclusion. Cases beyond number from the Federal courts, and from courts of other states, universally hold that a provision in an interstate bill of lading making a claim in writing a prerequisite to an action for damages to goods shipped is valid. We have made the same pronouncement as to a substantially identical provision in a bill of lading covering an interstate shipment. Hubbard Grocery Co. v. Payne, 94 W.Va. 273, 118 S.E. 152. We conceive of no reason why a different holding should be required, or permitted, in the case of an intrastate shipment. The validity of a requirement for the filing of a claim in writing in case of interstate shipments did not arise from the Federal Act. That statute merely limits a right to require the filing of such a claim as a condition precedent to action--a right which exists by common law. We hold that the requirement of Section 2(b) that a claim in writing be filed within nine months of delivery of the property alleged to have been damaged is a valid and binding prerequisite to the maintenance of an action for such damages.
The plaintiff, however, asserts that, in this case, sufficient claim in writing was actually filed. The notation by the agent of the delivering railway on the freight bill and his written report to his own company and to the defendant are claimed to be such. Our attention is called to the fact that Section 2(b) of the bill of lading does not state by whom the claim shall be filed or that it shall be signed by the claimant or by any other person. The language of that section is that "claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading ***." But, can there be any question that it is clearly meant that the person damaged shall file the claim? Who else could have any legal power so to do? Could a carrier file a claim with or against itself? Or could the agent of the carrier act also as the agent for the shipper? Or, as a factual matter does either of the writings made out by the agent of the delivering carrier purport, or appear, to be a claim in behalf of the plaintiff? On the freight bill, the writing of this agent was merely a statement that there was certain injury to the property, the extent of which could not be determined. This bill was then delivered to the plaintiff, not to the defendant. It was not filed with the defendant at any time. This writing, therefore, in no sense can be held to be the filing of a claim. Nor is this agent's official report to his company, and to the defendant, more efficacious. These reports are merely that and no more--reports of damage such as the agent was required to make in all cases where goods in shipment were injured. The agent did not report a claim for damages, for no such claim had been made to him; he did not report damage in any amount, or injuries in any degree, for these were unknown to either party and unascertainable; he did not make this report at the request of the plaintiff, or on its behalf, or even with its knowledge. As for the plaintiff, it did absolutely nothing whatever toward asserting a claim for damages other than to call the attention of the delivering company's agent to some injury of the goods. Indeed, plaintiff's letter of July 23, 1941, is in form and substance a first, not a subsequent, or followup, claim. It reads:
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