Davis v. Oil

• Decision Date: 22 May 1923
• Docket Number: No. 4723.,4723.
• Citation: 94 W.Va. 73
• Court: West Virginia Supreme Court
• Parties: James C. Davis, Dir. Gen. v. Lawrence Oil & Gas Co.

94 W.Va. 73

James C. Davis, Dir. Gen.

v.Lawrence Oil & Gas Co.

No. 4723.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1923.

Decided May 22, 1923.

1. Carriers Party Placing Gars on Siding with no Shipping Directions Liable for Demurrage.

Where a railway, at defendant's request, placed its cars on its sid, ing, to be loaded with lumber by the owner thereof, and the lumber is loaded thereon but no shipping directions are given by either the owner of the lumber or by the defendant, in consequence whereof the cars are permitted to remain on the siding and demurrage charges accrue therefor, the party at whose instance they were placed there is respon- sible for the demurrage charges, and recovery may be had in the common counts in assumpsit. (p. 79).

2. Same Right to Recover for Demurrage not Affected by Fact

That Material in Cars Does Not Conform to Contract.

Such right of recovery is not affected by the fact that the loaded lumber does not conform to the contract made between the vendor and purchaser. p. 79).

3. Appeal and Error Verdict on Conflicting Evidence not Dis-

turbed, Unless Strongly Indicative of Passion, Prejudice, or Improper Influence.

The verdict of a jury, based upon conflicting evidence, will not be set aside, unless the evidence so strongly preponderates against the verdict as to indicate that the jury was moved by passion, prejudice, pr some other improper influence. (p. 79).

Error to Circuit Court, Kanawha County.

Action by James C. Davis, Director General, against the Lawrence Oil & Gas Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Henry 8. Cato, for plaintiff in error. Fitzpairick, Brown & Davis and C. W. Stricklmg, for defendant in error.

Meredith, Judge:

Plaintiff sued in assumpsit to recover $964.00, principal and interest of demurrage charges on two of his flat cars, and recovered the full amount claimed. Defendant seeks a reversal.

Plaintiff operates an interstate railway system, including a branch line extending from Cabin Creek Junction, at the mouth of Cabin Creek, up that creek to its head-waters. Defendant at the time this controversy arose was in the oil and gas drilling business and operated a lease secured from the plaintiff, covering certain portions of the railroad right of way, and in the vicinity of Dawes Station. In order to drill its wells defendant constructed rigs, and purchased heavy rig timbers, usually cut to pattern, from different lumber companies. One such company was the Haywood Lumber Company, which in 1918 was cutting and milling lumber near Oakley Siding, a station about two miles above Dawes Station. This action involves the demurrage charges on two flat cars which the Haywood Lumber Company loaded with rig timbers during the first week in March, 1918, on Oakley Siding, and which remained at that point loaded and unmoved until April 27, 1918. The essence of the contention is that while plaintiff claims that the cars were loaded solely at the instance of the defendant, the purchaser and consignee, and were subject to its orders alone; the defendant claims that the cars were not placed on the siding at its direction, that it did not in fact order the lumber loaded upon them and that if any one is responsible for demurrage charges it must be the Haywood Lumber Company, the shipper.

In the declaration, consisting of the common counts and one special count, plaintiff bases his case upon his alleged contract of carriage with defendant, and throughout the evidence adduced by him he does not recognize that any contractual relationship ever existed between him and the Haywood Lumber Company.

Two main facts are substantially conceded by both parties. In the first place, it is certain that the two cars were placed on Oakley Siding during the first few days in March, 1918, perhaps March 7th, that being the date indicated on plaintiff's demurrage statement. Further, the fact is not controverted that when about to haul the cars to their destination near Dawes, the plaintiff was instructed by an agent of defendant not to move them; in consequence of which they remained on the siding until April 27th, when they were unloaded by defendant's employees.

It is upon the circumstances which gave rise to the above uncontroverted facts which the parties so materially differ.

Plaintiff produced three witnesses who were employed by his company in the freight department in the Cabin Creek district when the cars were placed upon the siding. Two of them, Hastings, the chief clerk at Cabin Creek, and Fout, the yardmaster at the same place, tell of the ordering of the cars by Bumpus, an employee of defendant. Hastings testifies that about March 1st, Bumpus, who had formerly ordered cars for the defendant company, directed that plaintiff place two flat cars on Oakley Siding to be loaded with rig timbers. Hastings, in turn, transmitted the order to Fout, whose business it was to place cars as directed by the chief clerk. Before doing so, however, he also was approached by Bumpus who requested that the cars be placed without delay. There seems to have been no delay. He says that he withdrew the cars from a Huntington local freight and forwarded them to the siding about March 1st in a train in charge of conductor Crawford, also a witness. They were as promptly loaded by the lumber company, but when Crawford returned with his train to haul the cars to their destination near Dawes he was met by Bumpus who instructed him not to move the loaded ears. On the following morning Bumpus notified Fout also not to move the timber, giving as his reason that "We are in a law-suit or are going to have a law-suit with another company and we are not ready to unload it." As this trial occurred four years subsequent to the happening of the events narrated, these witnesses could not recall in detail every circumstance connected with the transaction; but as to all the main facts, the ordering of the cars by Bumpus, his request for their immediate placement, and his subsequent directions not to move them, there is no uncertainty whatever. By the witness Hastings plaintiff proved the method of computing demurrage, especially with reference to the two cars in question. There is in fact no controversy on this phase of the case.

There were no bills of lading or written shipping instructions of any kind to throw light on the carriage contract.

The cross-examination of defendant's counsel failed to weaken to any substantial degree the direct testimony outlined above. At one point counsel attempted to show that it would have been impossible for Fout to have withdrawn the flat cars from the Huntington local for use on March 1st, because of the fact that at least one of the same cars had been used two days earlier to haul a prior shipment of rig timbers from the same siding. Counsel also probably had it in mind to show that the ordering of cars of which the plain- tiff's witnesses spoke, was for the earlier shipment. The attempt, however, proved little. Neither Font nor Hastings testified that the cars were ordered on the first day of March, but "about the first of March." As stated, the demurrage statement showed the date to be March 7th.

E. D. Haywood, who was manager and controlling partner of the Haywood Lumber Company in 1918, as witness for plaintiff, explained his sales agreement with A. C. Lawrence, manager of defendant company. He testified that Lawrence had told him orally that he would probably need about nine rigs, and that he would need six or seven as fast as he could get them. The...