Campbell v. The Chespeake

• Court: West Virginia Supreme Court
• Writing for the Court: WOODS, J.
• Citation: Campbell v. The Chespeake, 111 W.Va. 358, 163 S. E. 31 (W. Va. 1931)
• Decision Date: 17 November 1931
• Docket Number: (No. 6964)
• Parties: Myron G. Campbell v. The Chespeake and Ohio RailroadCompany.

111 W.Va. 358

Myron G. Campbell

v.The Chespeake and Ohio Railroad Company.

(No. 6964)

Supreme Court of Appeals of West Virginia.

Submitted November 4, 1931.

Decided November 17, 1931.

Appeal and Error

"Where, in a case submitted to the court on a demurrer to plaintiff's evidence, it appears that there has been an omission to adduce all evidence on the issue upon which the right of the recovery depends, and, if the interests of justice will thereby be subserved, this court will afford an opportunity to a proper development of the merits of the case, by reversing the judgment below, and awarding a new trial." Point 2, syl., Laas v. Lubic, 101 W. Va. 546, 133 S. E. 142.

Error to Circuit Court, Kanawha County.

Action by Myron G. Campbell against the Chesapeake & Ohio Railway Company. Judgment for the plaintiff, and the defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

Fitzpatrick, Brown & Davis and C. W.Strickling, for plaintiff in error.

Claude L. Smith, for defendant in error.

Woods, Judge:

This is an action in assumpsit against The Chesapeake and Ohio Railway Company to recover damages because of the freezing of a shipment of lemon juice in transit between Oakland, California, and St. Albans, West Virginia. At the conclusion of plaintiff's evidence, the defendant demurred thereto, and the court of common pleas of Kanawha County, upon consideration thereof, found for the plaintiff and entered judgment on the conditional verdict for $650.00, interest and costs.

The goods were shipped on an interstate bill of lading, which contained the folowing conditions:" 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 * * *; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness of negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery." These conditions are based on a Federal statute (Act of Congress of March 4, 1915, known as the first Cummins Amendment, chapter 176, 38 Stat, at L. 1196, 1197), which provides among other things, "That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery."

The courts in construing the statute have held that the purpose of the second clause quoted is to except some cases from the application of the general rule, and to provide that, as to them., no notice of claim nor filing of claim shall be required. The Chesapeake & Ohio B. B. Co., v. Thompson Manufacturing Co., (W. Va.) 270 U. S. 416, 70 L. Ed. 659, 46 Sup. Ct. 318; Davis Director General, etc. v. Boper Lumber Co., 269 U. S. 158; 70 L. Ed. 209, 46 Sup. Ct. 28; Barrett v. Van Pelt, 268 U. S. 85, 69 L. Ed. 857, 40 Sup. Ct. 437. In the first mentioned case, it was held that the words '' carelessness or negligence of the carrier" in the statute do not refer to the presumption of negligence which arises when goods received in good condition are in bad condition when delivered, but apply only when the injury is due to the carrier's actual negligent conduct in fact. And in Barrett v. Van Pelt, supra, Mr. Justice Butler made the observation that "Notice and filing of claim warn the carrier that there may be need to make investigations which otherwise might not appear to be necessary; and if notice of claim is given and filing of claim is made within a reasonable time, it serves to enable the carrier to take timely action to discover and preserve the evidence on which depends a determination of the merits of the demand. As to claims for damages not due to negligence, in the absence of notice, there may be no reason for anticipating demand, or to investigate to determine the fact or extent of liability."

The plaintiff offered proof to the effect that the goods were in good condition when shipped, and that they were frozen and worthless when received. No specific acts of negligence were attempted to be proved. So, under the decisions cited, he must show that proper notice was given. Hubbard Grocery Co. v. Payne, Director General, etc., 94 W. Va. 273.

The issues raised on the demurrer to plaintiff's evidence are: Did the plaintiff file a claim of loss, and, if so, was it filed in time? The evidence on this phase of the case is as follows: "Q. Mr. Campbell, did you receive the lemon juice that was sent you? Mr. Strickling: We object, if that question assumes the delivery to the carrier. Mr. Smith: All right, we can get around that. Q. Mr. Campbell, I hand you what purports to be a bill of lading of The Western Pacific Railroad Company, bearing date the 15th of December, 1928, countersigned Sunset Gold Packing Company, by G. W. Edwards, and will ask you whether or not you ever saw that before? A. Yes, it looks like the same one I turned over to the railroad company. Q. Did you have that bill of lading when you turned it over to the railroad company was it yours? A. The Sunset Gold Packing Company sent it to me with their invoice. Q. Is that the signature of Mr. G. W. Edwards, do you know? A. Yes, sir. Q. Mr. Campbell, there was a duplicate to that particular bill of lading, was there not? A. Yes, sir. Q. What did you do with that. A. They were both turned over to the C. & 0. Railway Company. Q. That was after you had filed claim for loss of goods? A. I filed the duplicate first, and then the original. The C. & 0. requested the original, and that was forwarded later."

Under the benign rule governing this Court in cases of demurrer to the evidence, it seems that we would be warranted in holding that such a proof of loss had been filed. Duty, et ux. v. Williamson Hudson-Essex Sales Co., 109 W. Va. 147; 153 S. E. 248; Truschel v. The Bex Amusement Co., 102 W. Va. 215; 136 S. E. 30; Dempsey v. Bailway Co., 69 W. Va. 271; 71 S. E. 284 Peabody Insurance Co. v. Wilson, 29 W. Va. 528; 2 S. E. 888; Heard v. Bailway Co., 26 W. Va. 455; Garrett v. Bamsey, 26 W. Va. 345. But we are not so sure that the proof wras filed in time. The declaration, not having been filed within the period required for filing said claim, cannot be looked to to supply this vital fact. In Cook v. Lumber Co., 74 W. Va. 503, at page 507, 82 S. E. 327-328; the court said: "If the real merits of the case are not developed by the evidence demurred to so as to enable the court to embody in its judgment the legal rights of the parties, there is, at least discretionary power to award a new trial."

So, following the above rule, which was invoked in the case of Insurance Co. v. Wilson, 29 W. Va. 528, 2 S. E. 888, as well as Laos v. Lubic, 101 W. Va. 552, 103 S. E. 142; we are of opinion to reverse the judgment of the circuit court, set aside the verdict and the demurrer to the plaintiff's evidence and joinder therein, and to afford the plaintiff an opportunity to supply the evidence necessary to sustain his case, if he can do so, by awarding a new trial. And to this end, the case is remanded.

Judgment reversed; verdict set aside; new trial awarded. Maxwell, Judge, (concurring):

When a plaintiff has closed his evidence, does a demurrer thereto, in which the plaintiff has joined, prevent him from supplying essential evidence inadvertently omitted? Admittedly not if he moves to set aside the joinder and to reopen the case before the court passes on the demurrer. Affirmative action on such motion is within the sound discretion of the court. But suppose the plaintiff does not perceive the deficiency in his evidence and makes no motion for leave to enlarge the same, what is his situation? Should the court summarily render judgment, or afford opportunity to the plaintiff to supply the defect? Reason and justice require the latter course, if it is reasonably apparent to the trial court that the necessary evidence exists. Such, indeed, seems to be the rule of Ins. Co. v. Wilson, 29 W. Va. 528. 2 S. E. 888, 889. Syllabus 10 thereof reads: '' The whole proceeding upon a demurrer to evidence is under the control of the judge before whom the trial is had; and if, owing to a mistake or other causes, a material fact be omitted without which the merits of the case can not be decided, the demurrer should be set aside and a new trial awarded; and this may be done on motion of either of the parties, or by the court itself, before final judgment." (Italics inserted.) Of course the court should not reopen the case on mere conjecture that the plaintiff may be able to strengthen his hand.

A demurrer to evidence is none too highly favored at best. Its only proper office is to test the legal right of a litigant on the facts. It is not a device for the entrapment of a litigant who, through inadvertence, has failed to develop in his evidence and essential element of his case.

It would seem to be unreasonable to require that the court must judicially know that such element can be established. In my judgment, it is sufficient if the court perceives that such evidence probably exists, or that the evidence on the vital point has been only partially developed as in the case at bar. This, as I apprehend, is the meaning of Lass v. Lubic, 101 W. Va. 546, 133 S. E. 142; where the court said: "Where, in a case submitted to the court on a demurrer to plaintiff's evidence, it appears that there has been an omission to adduce all evidence on the issue upon which the right of recovery depends, and, if the...