Baltimore & O.R. Co. v. Dellslow Coal Co.

• Decision Date: 17 February 1925
• Docket Number: 5161.
• Citation: 127 S.E. 43,98 W.Va. 194
• Parties: BALTIMORE & O. R. CO. v. DELLSLOW COAL CO.
• Court: West Virginia Supreme Court

127 S.E. 43

98 W.Va. 194

BALTIMORE & O. R. CO. v. DELLSLOW COAL CO.

No. 5161.

Supreme Court of Appeals of West Virginia.

February 17, 1925

Submitted February 10, 1925.

Syllabus by the Court.

The evidence in the case at bar shows that the demurrage sued for was on shipments of coal from the defendant's mine and was based upon tariffs issued by the railroad company under the provisions of the Interstate Commerce Act (Comp. St. U.S § 8563 et seq.). A clause in the tariff filed, providing for an exemption of coal cars subject to car distribution rules from demurrage charges, is notice to a coal company, and the duty is cast upon said coal company to comply with the terms prescribed by the railroad company, if it desires to avail itself of the benefit of such exemption. A failure on the part of the coal company to take the action necessary on its part to bring itself within such exemption renders it liable to the railroad company for demurrage charges under said tariff.

A motion to exclude all the plaintiff's evidence and direct a verdict for the defendant should be refused when the plaintiff's evidence prima facie entitles it to recover.

Additional Syllabus by Editorial Staff.

Under Barnes' Code, c. 13, § 4, relating to proof of law of other states or of United States, courts take judicial notice of Interstate Commerce Act.

Error to Circuit Court, Monongalia County.

Action by the Baltimore & Ohio Railroad Company against the Dellslow Coal Company. From judgment for defendant, plaintiff brings error. Judgment reversed, verdict set aside, and case remanded for new trial.

Glasscock & Glasscock, of Morgantown, for plaintiff in error.

Charles T. Herd and Frank P. Corbin, both of Morgantown, for defendant in error.

WOODS J.

This case involves demurrage accrued on three cars placed empty by the plaintiff railroad company on the siding of the Dellslow Coal Company, at the mine of said coal company, in November and December, 1920. The demurrage on the three cars was $411, plus war tax $12.33, making in all $423.33. Each of these cars was loaded with coal by the Dellslow Coal Company. This amount was reduced to $303.03 by sale of the coal in the third car by the railroad company at request of defendant. At the January term, 1923, the defendant filed a plea of nonassumpsit, and at the October term, 1923, filed a plea of recoupment, and at the January term, following, trial was had before a jury, and at the conclusion of the plaintiff's evidence the circuit court, on motion of the defendant struck out the evidence and directed a verdict for the defendant.

To conform with the provisions of the Interstate Commerce Act 24 U.S. Statutes at Large, 379, c. 104 (Comp. St. U.S. § 8563 et seq.), requiring all charges to be just and reasonable, and forbidding unjust discrimination and undue or unreasonable preference or advantage, the plaintiff company, with certain other railroads, through their agent, adopted and published Demurrage Tariff No. 4-A, which was issued and filed under special permission of the Interstate Commerce Commission May, 1920. Section B, of Rule 1, reads as follows:

"The following cars are not subject to these demurrage rules (1 and 2 omitted):

(3) Empty cars placed for loading coal at coal mines, coal mine sidings, coal washers, or coke at coke ovens and such cars under load with coal, at such mines, mine sidings or coal washers, or with coke at coke ovens. This exemption applies only at mines, coal washers and ovens which are subject to car distribution rules in lieu of demurrage rules."

Note that the application of paragraph 3 of the rule, quoted above, is made clear in the last sentence: "This exemption applies only at mines, coal washers and ovens which are subject to car distribution rules in lieu of demurrage rules." This tariff, under the statute, and which was introduced in evidence, was required to be open for inspection to all interested, especially shippers, at all stations. The coal company is charged with notice that unless it brought itself within the car distribution rule of the railroad company, it would not come within the demurrage exemption. The duty was cast upon it to avail itself of such rating through the proper channels provided for by the railroad company.

At the time of this controversy the railroad had certain rules governing the rating of coal mines and car distribution to such mines, which rules were introduced in evidence. Under these rules they required all coal companies to fill out a certain form or questionnaire, Form 2622-A, regarding said mining operation, so that said railroad company could rate them and provide for cars on an equitable basis through the mining areas. As long as defendant company did not execute such form or questionnaire, it remained subject to the usual demurrage charges. The theory of the car distribution rules, adopted in different forms by various railroads, is to prevent unreasonable discrimination in the supply of cars. Localities as well as shippers may be prejudiced by unjust discrimination in this regard. In United States v. West Virginia Northern Railway Co., 125 F. 252, the United States Circuit Court for the Northern District of West Virginia held:

"It is the legal duty of a railroad company, in furnishing cars to coal mines along its line, where a limited number only can be supplied, to distribute the same impartially, without unjust discrimination or favoritism; and such distribution should be based on a disinterested and intelligent examination by experts of the different mines, and upon a consideration of all the factors which go to make up their capacity, both actual and potential, the most important being the number of workings and their capacity for production, the equipment in use for handling and loading the product being secondary, because it may be readily and quickly increased if necessary to meet the requirements."

Plaintiff offered testimony to prove that the cars loaded by defendant did not come within the exception of paragraph 3 of the rules of the tariff hereinbefore quoted. From the proof it appears that the first car was placed on November 15, 1920, on the siding at the Dellslow Coal Company mine, and released November 18, 1920; the demurrage and war tax being $4.12. The second car was placed November 27, and released December...