Baltimore v. Dellslow Coal Co.

• Decision Date: 17 February 1925
• Docket Number: (No. 5161.)
• Citation: 98 W.Va. 194
• Parties: Baltimore & Ohio Railroad Co. v. Dellslow Coal Co.
• Court: West Virginia Supreme Court

98 W.Va. 194

Baltimore & Ohio Railroad Co.

v.Dellslow Coal Co.

(No. 5161.)

Supreme Court of Appeals of West Virginia.

Submitted February 10, 1925.

Decided February 17, 1925.

1. Carriers -Failure by Shipper to Bring Itself Within Exemption from Demurrage Charges on Cars Subject to Car Distribution Rules Renders it Liable to Demurrage Charges Under Tariff Published by Carrier.

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. 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. (p. 196).

2. Trial On Plaintiff's Evidence Prima Facie Entitling it to Recover, Motion to Exclude Plaintiff's Evidence and Direct Verdict for Defendant Should be Refused,

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, (p. 200).

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.

Reversed.

Glasscock & Glasscock, for plaintiff in error. Charles T. Herd and Frank P. Corbin, for defendant in error.

Woods, Judge:

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 $411.00, 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 non-assumpsit, 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, 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 Company, 125 Fed. 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 1, 1920, the urrage and war tax being $4.12. These ears were released without the demurrage and war tax being paid, the coal company challenging the right of the railroad company to charge demurrage. Mrs. Cobun, who did the clerical work for her husband, the...