Norfolk Tidewater Terminals Inc v. Norfolk & P. Belt Line R. Co

• Decision Date: 10 March 1938
• Court: Virginia Supreme Court
• Parties: NORFOLK TIDEWATER TERMINALS, Inc. v. NORFOLK & P. BELT LINE R. CO.

195 S.E. 684

NORFOLK TIDEWATER TERMINALS, Inc.

v.NORFOLK & P. BELT LINE R. CO.

Supreme Court of Appeals of Virginia.

March 10, 1938.

^*

Error to Court of Law and Chancery of City of Norfolk; Richard McIlwaine, Judge.

Assumpsit by the Norfolk Tidewater Terminals, Incorporated, against the Norfolk & Portsmouth Belt Line Railroad Company to recover for services allegedly rendered. Judgment for defendant, and plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James S. Barron, of Norfolk, for plaintiff in error.

Willcox, Cooke & Willcox, of Norfolk, for defendant in error.

HOLT, Justice.

During the late war, the Federal Government, for military purposes, built on the water front at Norfolk what was and is known as the "Army Base." It is a marine terminal, adequately equipped with docks, piers, warehouses, trackage, and necessary accessories. After hostilities had ended, in 1920, the city of Norfolk took over and operated this terminal under lease from the Government and continued to operate it until September 1, 1925, when that contract was terminated by mutual consent. The Norfolk Tidewater Terminals, Inc., a Virginia corporation, was then organized, and in its turn took over and has continued this terminal until today, under leases from the Federal Government.

The Norfolk & Portsmouth Belt Line Railroad Company, a Virginia corporation, is, as its name indicates, a belt or switching line and is a common carrier. It runs around Norfolk and Portsmouth and connects with and serves the eight main line railroads which terminate in these cities, together with accessible industrial plants. None of these railroads has direct connections with the plaintiff company; all deliveries to and from plaintiff are made over the Belt Line. The manner in which business was and is done is not in dispute. It is the practice of defendant, on inbound movements, to collect cars from the line haul carriers and industrial plants along its route and assemble them into trains at Boush Junction, from which point one of its engines transports the train and places it on the "hold" tracks located inside the "chain gate" at the Army Base. Its employees in charge of the train then furnish plaintiff with a list of the cars in the train so placed. Upon receiving information that this has been done, plaintiff designates the pier, warehouse, or shipside to which the respective cars are to be placed or "spotted." Outgoing cars are moved from piers and shipsides, sometimes by the Terminal Company, sometimes by the Belt Line. In the terminal yards they are made up by the Belt Line into trains and taken away.

When the plaintiff took over these premises, the defendant prepared and submitted to it a contract which contained, among others, these provisions:

"1. The Terminal agrees to maintain, subject to the approval of the proper officer of the Belt Company, any and al! tracks uver which the Belt Company may operate with its engines and cars in making deliveries of freight to, or taking deliveries of freight from the Terminal."

"3. In further consideration of the advantages and benefits to accrue to the said Terminal on account of the operation of said tracks by the Belt Company, the. said Terminal agrees to indemnify and protect and save harmless the said Belt Company from all claims of whatever character for damages by reason of fire originating from the locomotives of the Belt Company while doing work for the Terminal and resulting in the burning or destruction of, or injury to, the property of the Terminal, and property in its car, custody or control."

"4. The Terminal also agrees to indemnify and hold harmless the Belt Company from all loss, damage, or injury arising from any act or omission of the Terminal, its employees, or agents, to the person or property of the parties hereto, or to their employees, and to the person or property of any other person or corporation while on or about said tracks, but if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne equally by them."

"9. The Belt Company shall deliver to and receive from the Terminal cars of freight billed to and by the Terminal, and will place cars for loading and unloading as indicated by the Terminal."

"10. Belt Company service shall cover the same spotting service as performed by the railroads in this vicinity at their own piers, and/or public warehouses, and any additional service required shall be charged for in accordance with legally published Belt Line tariffs. Charges for Belt Company service shall accrue to the Belt Company."

"11. That the Belt Company will pay to the Terminal twenty-five (25¢) cents per loaded car for use and maintenance of tracks through the Army Supply Base owned by the United States Government on all traffic handled for the account of the Terminal over the tracks in the Army Supply Base."

"19. It is distinctly understood and agreed by and between the parties hereto that either party shall have the right to terminate this agreement either at the expiration of five years from said first day of September, 1925, or at any time thereafter upon giving to the other party hereto ninety (90) days written notice of its intention so to do, notwithstanding the expressed provision herein set forth that this agreement shall continue in force so long as the Terminal is lessee of the said premises designated in this agreement."

These conditions sought to be imposed are not usually regarded as unreasonable. Imperial Wheel Co. v. St. Louis, etc., R. Co., 20 I.C.C. 56. But be that as it may, the plaintiff was unwilling to accept them and so matters stood; business went on and goes on as usual. For seven years and eight months prior to the period for which this action is brought, the defendant in monthly payments paid to plaintiff in the aggregate $37,601.75. Since that time 43, 718 cars have been transported by the defendant over the plaintiff's tracks. If compensation be paid therefor, on the basis of previous payments, that is to say, at 25 cents a car, there would be due $10,929.50. This is the amount of the jury verdict. Plaintiff has spent during that time in the maintenance of its own tracks $16,828.38. There is a perfect maze of them; end on end they would cover eighteen or twenty miles and are an indivisible part of the terminal itself. Piers without tracks to supply them freight would be of little value and so would tracks which lead to nothing.

This is an ordinary action of assumpsit and rests upon the common count. Plaintiff in substance contends that it has rendered to the defendant valuable services for which it should be paid on a basis recognized. By way of defense, it is said that plaintiff's claim rests upon no valuable consideration, that there was no express contract, and conceding, for the sake of argument, that there was an implied one, it has been terminated by notice. It further contends that even if this claim rested upon an express contract, it would be illegal under federal laws and regulations.

The general law as to liability on implied contracts or on a quantum meruit is not in dispute. Even a disclaimer in advance of liabilities may be wholly ineffectual. If the Belt Line were to in form the Virginian Railway that it would no longer pay for the use of a storage track and thereafter continue to use it, this notice would amount to nothing; and for the same reason, if there was any liability upon this Belt Line for its use of the terminal tracks in shifting cars, no notice can relieve it of that liability for shiftings thereafter made.

Does plaintiff's claim rest upon any consideration at all?

If this Belt Line were to make up a train load of freight cars from other carriers which, for any reason, were to be shipped from the Norfolk & Western piers and were to take them to that terminal, it is obvious that neither the Norfolk & Western Railway nor its Terminal Company, if it be a separate corporation, could charge the Belt Line for that service or for any part of it. If, after taking them there and placing them upon a receiving track, it should, for the convenience of that railroad, break up this train and distribute its cars in such manner as to make their unloading more convenient,...