Davis v. Rodgers

• Decision Date: 25 September 1924
• Citation: 124 S.E. 408
• Parties: DAVIS, Agent, etc., v. RODGERS et al.
• Court: Virginia Supreme Court

124 S.E. 408

DAVIS, Agent, etc.,

v.RODGERS et al.

Special Court of Appeals of Virginia.

Sept. 25, 1924.

Error to Circuit Court of City of Norfolk.

Action by John H. Rodgers and others against James C. Davis, Agent, etc. From judgment for plaintiffs, defendant brings error. Reversed, and judgment directed for defendant.

Wm. B. Mcllwaine, of Petersburg, and A. B. Carney, of Norfolk, for plaintiff in error.

Alfred Anderson, of Norfolk, for defendants in error.

HOLT, J. This is an action instituted by Rodgers & Co., cotton factors, of the city of Norfolk, to recover damages for the loss of 5 bales of cotton out of an interstate shipment of 170 bales deposited at Ayden, N. C., on November 7, 1919, by Turnage & Bros., to be forwarded to these factors at Norfolk.

For this shipment a bill of lading issued, containing, among other things, the following stipulations:

"Section 3. * * * Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property, or, in the case of failure to make delivery, then within six months after a reasonable time for delivery has elapsed.

"And suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery then within twoyears and one day after a reasonable time for

delivery has elapsed."

That these stipulations are part of federal regulations for interstate commerce, and that they are valid and reasonable and not affected by section 206 of the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc), are matters that are "not in dispute."

There are four assignments of error. The first and second relate to giving and refusing instructions, while the fourth is based upon the refusal of the trial court to set aside the judgment as contrary to the law and the evidence. These assignments all raise the same issue. They deny that the plaintiffs under the evidence have any right to recover at all—that there was anything for the jury to consider.

The rule in the federal courts, dealing with juries is:

"It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts and promotes the ends of justice." Barrett v. Virginian By. Co., 250 U. S. 473, 39 Sup. Ct. 540, 63 L. Ed. 1092.

This excellant rule we are precluded by statute from following (Code, § 6003), though it is still possible under our practice by less summary methods to accomplish the same results. A demurrer to evidence may be interposed; evidence may be stricken out (Fleshman v. Bibb, 118 Va. 582, 88 S. E. 64); the trial court may set aside the verdict, and in a proper case give final judgment (Code, § 6251); the trial court may decline to give any instruction where the evidence would not sustain a verdict, and it may in substance direct a verdict by stating in an instruction a hypothetical case and telling them, if they believe, to find, etc. (Small v. Virginia B. & P. Co., 125 Va. 416, 99 S. E. 525).

The effect of these established methods of procedure is to substitute the judgment of the court for the judgment or verdict of the jury. When should this power be used?

In Richmond v. Lambert, 111 Va. 174, 68 S. E. 276, and Dun v. Seaboard Railway, 78 Va. 645, 49 Am. Rep. 388, the court seems to say that, where there is no dispute about the facts, the matter is for the court and not for the jury, but this unqualified statement is not entirely accurate, and the true rule is that laid down in Norfolk v. Anthony, 117 Va. 777, 86 S. E. 68:

"It is furthermore well settled by the Supreme Court of the United States and this court, by practically an unbroken line of decisions, that negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw one inference therefrom."

To the same effect see Payne v. Brown, 133 Va. 222, 112 S. E. 833; that is to say, when the facts are certain, and when fair-minded men cannot be of two opinions as to the inferences to be deduced therefrom, then the matter is for the court and not for the jury. In this connection it is proper to remember that the scintilla doctrine is not revived in this state. Realty Co. v. Bureum, 129 Va. 466, 106 S. E. 375.

We should bear in mind that the limitation in the bill of lading is not that the plaintiff shall have six months after delivery and a reasonable time in which to give notice of loss, but that this notice must be within six months after a reasonable time for delivery has elapsed. When a reasonable time for delivery had passed, he had six months and no more in which to give notice, and this brings us back to the question as to what was reasonable time for delivery in the instant case.

Ayden is 130 miles from Norfolk. Cotton was delivered there on November 7, 1919, consigned to plaintiffs. The record showed that it moved forward towards its destination on the following day. Five bales were lost; how, why, when, or where we do not know. A reasonable time for it to continue in transit is fixed by witnesses at from 3 to 7 days; 7 being the outside limit. It also appears that at times cotton has remained on the platform at Ayden as much as 10 days before being forwarded, though there is nothing to show that anything of this kind happened to the cotton in question. It does appear to have been shipped on the day following its receipt. Evidence for the plaintiffs is that 30 days would have been an unreasonable time to be consumed in such a shipment. Taking the extreme, and assuming that this cotton after delivery remained at Ayden for 10 days, and that it took 7 day's to carry it to Norfolk, we have 17 days at the outside to be taken up in such a transaction, and outside time is not reasonable time. The notice in writing required was given on August 14, 1920, and this suit instituted on February 28, 1922; that is to say, the notice, instead of being given 17 days after shipment, was given 97 days thereafter. Of course this time is in addition to the 6 months given by the contract.

The fact that the jury had a right to consider all the circumstances in the case is stressed. This is entirely true, but the circumstances which it may consider must be of evidential value. Under the guise of considering circumstances it is not...