Norfolk & W. Ry. Co. v. Ft. Dearborn Coal & Export Co.

• Decision Date: 03 May 1922
• Docket Number: 1944.
• Citation: 280 F. 264
• Parties: NORFOLK & W. RY. CO. v. FT. DEARBORN COAL & EXPORT CO.
• Court: U.S. Court of Appeals — Fourth Circuit

280 F. 264

NORFOLK & W. RY. CO. v. FT. DEARBORN COAL & EXPORT CO.

No. 1944.

United States Court of Appeals, Fourth Circuit.

May 3, 1922

John H Holt, of Huntington, W.Va. (Theodore W. Reath and F. Markoe Rivinus, both of Philadelphia, Pa., and Holt, Duncan & Holt of Huntington, W. Va., on the brief), for plaintiff in error.

George S. Couch and Malcolm Jackson, both of Charleston, W.Va. (Brown, Jackson & Knight, of Charleston, W. Va., on the brief), for defendant in error.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

KNAPP Circuit Judge.

During the months of July and August, 1920, the Ft. Dearborn Coal &amp Export Company, plaintiff below and herein so called purchased from the Old Dominion Coal Corporation, on board cars at the mines of the Mud Lick Coal Company, at Stone, Ky., a quantity of run of mine coal, intended for export. A stipulation of the parties, entered into before plaintiff's declaration was filed, is to the effect that the coal so purchased consisted of 897 tons of run of mine coal, which was shipped by the Old Dominion Corporation over the lines of the Williamson & Pond Creek and Norfolk & Western Railways, consigned to the Ft. Dearborn Company at Lamberts Point, Va., for export, but was confiscated en route by the Norfolk & Western, at Bluefield, W. Va., and used by it for fuel purposes, without the knowledge or consent of the Ft. Dearborn Company. Pursuant to this stipulation plaintiff filed its declaration in trespass on the case, alleging damages to the amount of $50,000, and issue was joined by defendant's plea of 'not guilty.'

At the trial, after reading the stipulation in evidence, plaintiff's president was allowed to testify, over repeated objection, that the aggregate price paid for the coal was $15,234.19, or a little under $17 per ton on board cars at the mines, and that the Old Dominion Company had brought suit therefor in the circuit court of Kanawha county, W. Va., and recovered a judgment against plaintiff for the principal sum of $15,234.19, with $1,084.05 interest, or a total of $16,318.24, which judgment it had paid. There was no attempt to show the market value of coal at the point of shipment, at the place of confiscation, or at destination; the only proof of damages offered by plaintiff being the price it paid for the coal. On cross-examination the witness testified that this coal was intended for export; that it was shipped under permits, and would have gone into pools 5 and 7 at Lamberts Point; that for coal so moving under permit, after it passed the Bluefield scales, defendant would arrange a credit to the consignee in the pool to which it was going; that the consignee would receive such credit before the coal arrived at destination; and that it then lost its identity. He was thereupon asked the following question:

'Then really what you lost, as I understand you, by the confiscation of this coal, was the credit for that amount of tons in the particular pool to which it was going?'

Plaintiff's objection to this question was sustained, as were also its objections to a number of similar questions put to defendant's witnesses showing or tending to show, as the avowals declare, that all coal shipped to tidewater over defendant's lines during the months of July and August 1920, was shipped to certain pools, under the articles of organization and rules of the Lamberts Point Coal Exchange, of which plaintiff was a member; that the coal in suit, if it had not been confiscated, would have gone into pool 5 or 7, and that plaintiff had no power to...