C. & O. Ry. Co. v. Martin

• Decision Date: 14 June 1928
• Court: Virginia Supreme Court
• Parties: THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. H. E. MARTIN AND W. H. PORTER.

Page 1

154 Va. 1

THE CHESAPEAKE AND OHIO RAILWAY COMPANY v. H. E. MARTIN AND W. H. PORTER.

Supreme Court of Virginia, Wytheville.

June 14, 1928.

Reheard March 20, 1930.

Absent, Epes, Hudgins, Gregory and Browning, JJ.

1. CARRIERS OF GOODS — Action by Shipper for Misdelivery — Unimpeached Testimony of Witness as to Reasonable Time of Delivery — Jury Judges of Credibility of Witness — Case at Bar. — The instant case was an action for misdelivery of goods by a carrier. Defendant contended that the notice required by the uniform bill of lading covering the shipment was not given within six months after a reasonable time for delivery had elapsed. A witness, a clerk, who had been notified to deliver the shipment to a certain warehouse, stated that in his opinion "about eight days" was a reasonable time for delivery. The witness did not show that he had any intimate knowledge upon the subject of what was a reasonable time. But defendant argued that the witness' evidence was conclusive as he stood unimpeached.

Held: That a jury would have been the judges of the credibility of the witness and would have had the right to determine what weight should be given to his evidence.

2. DEMURRER TO THE EVIDENCE — Credibility of Witnesses — Unimpeached Witness. — As a matter of law, if the jury upon a trial on the merits could not be compelled to accept as true the testimony of a witness, the court, in passing upon a demurrer to the evidence, should not be required to do so.

3. CARRIERS OF GOODS — Action by Shipper for Misdelivery — Notice of Claim in Six Months Required by Uniform Bill of Lading — Shipper Ignorant of Breach of Contract on Part of Defendant — Case at Bar. — In the instant case, an action against a carrier of goods for misdelivery of potatoes, through no fault of the plaintiffs, there was as a result of defendant's negligence a misdelivery of the potatoes, which consequently spoiled. The present action, therefore, was equivalent to an action for non-delivery. Plaintiffs had a right to rely upon their notification to defendant to deliver their potatoes to a certain warehouse. This being true, it cannot be said that plaintiffs had failed to carry out their part of the contract by failing to give notice of their claim in six months required by the uniform bill of lading covering the shipment, when they were in ignorance of the breach of contract upon the part of defendant as to delivery, and promptly made claim when they discovered the true state of affairs.

4. CARRIERS OF GOODS — Delivery — Reasonable Time. — What is a reasonable time for delivery in case of shipment of goods cannot be defined with exactitude. What is a reasonable time in one case may not be a reasonable time in a similar case.

5. CARRIERS OF GOODS — Action for Misdelivery — Notice of Claim. — If shippers of goods were bound to give the carrier notice of their claim for misdelivery, if the evidence shows that such notice was given without delay as soon as the negligence of the defendant which occasioned the loss was discovered, it is sufficient.

ON REHEARING.

6. CARRIERS OF GOODS — Notice of Claim of Loss — Shipper Ignorant of Loss — Case at Bar. — The instant case was an action for wrongful delivery of potatoes by a carrier, in consequence of which the potatoes spoiled. The evidence upon a demurrer thereto was sufficient to justify the trial court in holding that the notice of loss required by the bill of lading was given in a reasonable time. Moreover, under the facts and circumstances of the case plaintiffs should be permitted to recover for the loss of the potatoes, which was directly due to the negligence of the defendant in the non-delivery of the car of potatoes as directed, and the carrier was estopped from asserting the defense of lack of notice of loss.

7. STARE DECISIS — Language not Necessary to Decision of Court. — Strong expressions in an opinion, where such language was not necessary to a decision of the case, will not establish a precedent.

8. CARRIERS OF GOODS — Notice of Claim in Six Months Required by Uniform Bill of Lading — Effect of Failure to Give Notice. — The failure to give the required notice of loss required by the uniform bill of lading within the time limit fixed in the bill does not in every case preclude a recovery against the carrier.

9. CARRIERS OF GOODS — Misdelivery — Notice of Claim — Case at Bar. — The instant case was an action for the misdelivery of potatoes by a carrier. In consequence of the misdelivery the potatoes spoiled. When the car of potatoes reached its destination plaintiffs paid the freight and ordered the carrier to deliver the same to a certain warehouse. The carrier delivered the potatoes to another warehouse. Plaintiffs did not know until the day before the notice of claim was given that the potatoes had not been delivered to the proper warehouse. In fact, they had been assured that the potatoes were in the proper warehouse.

Held: That plaintiffs were not precluded from recovering because the notice of claim was not filed within the time prescribed by the bill of lading.

Error to a judgment of the Law and Equity Court, Part 2, of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Leake & Spicer and D. H. Leake, for the plaintiff in error.

J. F. Hall, for the defendants in error.

CAMPBELL, J., delivered the opinion of the court.

This action was brought by Martin and Porter, hereinafter called plaintiffs, against the defendant railway company, to recover damages for an alleged misdelivery of a carload shipment of potatoes. The defendant demurred to the evidence, the court overruled the demurrer and rendered judgment for the plaintiffs, and to that judgment this writ of error was awarded.

The material facts are these: In the fall of 1925, the plaintiffs, who were residents of New Kent and James City counties, respectively, were associated as partners in the sale and purchase of potatoes. They had contracted to purchase twenty cars of potatoes from the Michigan Potato Growers Exchange, to be delivered at Richmond, Virginia, subject to the right of inspection at that point. The plaintiffs had no place of business in Richmond, but had arrangements to store the potatoes with the Bowman Transfer and Storage Warehouse. Before the arrival of the potatoes in issue, plaintiffs gave to the defendant a list of the car numbers and notified it that all potatoes billed to them were to be placed in storage in the Bowman warehouse and to deliver same to the warehouse.

The potatoes in suit were shipped from Wymans, Michigan, on November 6, 1925, and arrived at the Fulton yards of the Chesapeake and Ohio Railway, at Richmond, Virginia, on November 12, 1925. They were inspected November 16, 1925, by the plaintiffs, who paid the freight and presented an order in their behalf from the consignor.

The car, to reach Bowman's warehouse, had to be switched over the tracks of the Southern Railway. The defendant, having been notified to deliver all potatoes billed to plaintiffs to Bowman's warehouse, gave the Southern Railway orders to deliver the car to Harwood's warehouse, which was several blocks distant from Bowman's. The potatoes were delivered to Harwood's warehouse and remained there unknown to the plaintiffs until some time in May, 1926, and while there spoiled, presumably from exposure to heat and cold.

Plaintiffs, on May 26, 1926, gave defendant written notice of their claim for damages. From the date of shipment at Wymans, Michigan (November 6, 1925), until the giving of such notice (May 26, 1926), there elapsed six months and twenty days.

Section 2(b) of the uniform bill of lading covering the shipment, which was issued by the Pere Marquette Railroad, at Wyman, Michigan, provided as follows:

"(b) Claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export), or in case of failure to make delivery, then within six months (or nine months in case of export traffic) after a reasonable time for delivery has elapsed; provided that if such loss, damage, or injury was due to delay or damage while being loaded on unloaded, or damaged in...