Artic Roofings, Inc. v. Travers
| Decision Date | 03 June 1943 |
| Citation | 32 A.2d 559,42 Del. 293 |
| Court | Supreme Court of Delaware |
| Parties | ARTIC ROOFINGS, INC., a Corporation of the State of Delaware, Defendant Below, Plaintiff-in-Error, v. THEODORE F. TRAVERS, Trading as Delaware Trucking Company, Plaintiff Below, Defendant-in-Error |
Supreme Court, No. 3, September Session, 1942.
Writ of Error on a judgment, entered by the Superior Court for New Castle County (No. 91, September Term, 1942) in sustaining a general demurrer to a special plea to the plaintiff's declaration; Artic Roofings, Inc., the defendant below elected to have a final judgment entered against it instead of a judgment respondeat ouster.
The case was at issue on other pleas filed.
Two questions were before the Court: (1) A motion by Travers to dismiss the writ of error because the judgment entered by the Court below, in sustaining the demurrer, was not final within the meaning of Section 12, Article IV, of the Constitution of 1897; and (2) Whether the demurrer should have been sustained by that Court, and judgment entered thereon for Travers, the plaintiff below.
The latter question was raised by the assignments filed by the plaintiff-in-error.
Other material facts will appear in the opinion of the Court.
The judgment of the Court is affirmed.
Aaron Finger (of Richards, Layton and Finger) for Artic Roofings Inc., the Defendant Below, Plaintiff-in-Error.
W Thomas Knowles for Theodore F. Travers, Trading as Delaware Trucking Company, the Plaintiff Below, Defendant-in-Error.
OPINION
HARRINGTON, Ch.
The motion of Theodore F. Travers to dismiss the writ of error is denied. Conceding that the validity of the judgment, entered by the Court below on demurrer to the plea of Artic Roofings, Inc., could be questioned by that writ at a later stage of the case (Empire Box Corp. v. Jefferson Island Salt Min. Co., 3 Terry (42 Del.) 258, 31 A.2d 240), it does not follow that it cannot be questioned at this stage, before trial and the final determination of the case. The plea filed, and held bad, involved material questions of law and fact, and the pleader did not exercise its statutory right to request the entry of judgment of respondeat ouster when the demurrer thereto was sustained. On the contrary, it elected to have a judgment entered against it on the issue raised by the demurrer. That was a final judgment, subject to a writ of error, at common law, and, also, under the provisions of Section 12, Article IV of the Constitution of 1897. Empire Box Corp. v. Jefferson Island Salt Min. Co., supra; Easton v. Jones, 1 Harr. 433, note; Woolley's Del. Pr., §§ 459, 460. See, also, Electrical Research Products, Inc., v. Vitaphone Corp., 20 Del.Ch. 417, 171 A. 738. Moreover, there are cases in the records where that practice has been followed; Stucker v. American Stores Co., 5 W. W. Harr. (35 Del.) 594, 171 A. 230, is one of them. Neither Ownbey v. Morgan's Ex'rs, 30 Del. 297, 7 Boyce 297, 105 A. 838, nor Norfolk Lumber Co. v. Simmons, 16 Del. 317, 2 Marv. 317, 43 A. 163, is inconsistent with this conclusion.
In and after the month of March, 1939, Theodore F. Travers, trading as Delaware Trucking Company, the plaintiff below, was a common carrier of freight, engaged in interstate hauling by trucks, under the Federal Motor Carrier Act of 1935 (Section 316(d), and Section 317(b), 49 U.S.C. A., and his schedule of tariff rates had been duly approved and filed, pursuant to its provisions. At various times, between March 31st, 1939, and February 28th, 1940, Travers transported certain merchandise for Artic Roofings, Inc., from Gloucester, New Jersey, to Edge Moor, Delaware, and was paid $ 3,421.57 therefor. According to the schedules filed, the freight charges should have been $ 7,025.48; measured thereby, the balance due and unpaid was, therefore, $ 3,603.91, and the carrier ultimately sought to recover that amount, with interest, in the Superior Court. But, by a special plea filed to the plaintiff's declaration, Artic Roofings, Inc., the shipper, alleged facts, in considerable detail, from which it appeared that it was ignorant of the freight rates in the schedules filed by Travers, and that the shipments made were induced by his false and fraudulent representations that he was operating under a schedule which permitted him to transport the particular merchandise at the rate of 10c per hundredweight; and that was charged and paid during the whole transportation period, of approximately eleven months. The plea, also, alleged that, but for the false and fraudulent representations of Travers, the shipper both "could and would have had the said merchandise transported by another carrier either by motor vehicle or by rail at said 10c rate * * *". Other and less important facts were likewise alleged: that the shipper did not examine the schedules of rates filed by Travers because of his statement with respect to their contents; furthermore, that such schedules were not only difficult to understand, but were filed only in the offices of the Interstate Commerce Commission in Philadelphia, Pennsylvania and in Washington, D. C., and were not conveniently accessible to a shipper doing business elsewhere. The purpose of the plea was to assert the damages alleged to have been suffered by the shipper, the defendant in the Court below, by way of counterclaim to the plaintiff's demand, and a notice of recoupment, alleging the amount of such damages, was attached thereto. The plaintiff's demurrer in the Court below admitted all of the facts alleged. Moreover, it is not denied that all of the essential elements of actionable fraud appeared; but the materiality of these allegations is questioned.
The controversy is based on the purpose and scope of the Federal Motor Carrier Act of 1935. Section 317(b) 49 U.S.C. A. is the important one, and provides:
"No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or facilities for transportation in interstate or foreign commerce except such as are specified in its tariffs * * *".
These provisions are followed by a proviso: "That the provisions of sections 1(7) and 22 of this title shall apply to common carriers by motor vehicles subject to this chapter."
Section 22, which is the important section, provides: "and nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."
In the absence of some unusual circumstances, a claim for damages resulting from fraud on the part of the plaintiff, in inducing a contract sued on, may be asserted by the defendant, by way of counterclaim and recoupment in the same action. Mackenzie Oil Co. v. Omar Oil & Gas Co., 34 Del. 435, 4 W. W. Harr. (34 Del.) 435, 154 A. 883, affirmed on Writ of Error, Phoenix Oil Co. v. Mackenzie Oil Co., 34 Del. 460, 4 W. W. Harr. (34 Del.) 460, 154 A. 894. In such cases, the plea and notice of recoupment set up a counterclaim "in the nature of a cross action sounding in tort;" and the rights sought to be asserted will be litigated in that manner in order to prevent a multiplicity of suits. Id. The general Federal rule, applicable to remedies, is no less liberal. It usually permits a shipper to assert his right to damages, suffered in transit by the negligence of the carrier, by counterclaim in an...
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Union Transfer Co. v. Renstrom
...of sections 1(7) and 22 of this title shall apply to common carriers by motor vehicles subject to this chapter.' The case of Artic Roofings v. Travers, supra, discussed and made obvious the objects and purposes of such sections. It is generally the applicable rule that when the reasonablene......