Western Md. Ry. Co v. Cross

• Decision Date: 16 June 1924
• Docket Number: (No. 4986.)
• Citation: 123 S.E. 572
• Parties: WESTERN MARYLAND RY. CO. v. CROSS.
• Court: West Virginia Supreme Court

123 S.E. 572

WESTERN MARYLAND RY. CO.

v.CROSS.

(No. 4986.)

Supreme Court of Appeals of West Virginia.

June 16, 1924.

(Syllabus by the Court.)

Error to Circuit Court, Mineral County.

Action by the Western Maryland Railway Company against James E. Cross, trading under the name and style of Cross Bros. Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Arthur Arnold, of Piedmont, and W. C. Grimes, of Wheeling, for plaintiff in error.

Chas. N. Finnell, of Keyser, and Wm. H. Maynard, of Baltimore, Md., for defendant in error.

MEREDITH, P. The Western Maryland Railway Company recovered a judgment for $177.12, principal and interest of a freight charge on a car of coal shipped by defendant as consignor from Angle Siding in Mineral county to Greenwich coal piers, near Philadelphia, Pa. Defendant seeks to reverse that judgment.

This is the second time the case has been before us for review. At the first hearing in this court we reversed a judgment for the plaintiff, and remanded the cause because the case had been tried and judgment rendered in the circuit court without an issue. We announced our decision October 17, 1&22. Railway Co. v. Cross, 92 W. Va. 9, 114 S. E. 438.

By order entered March 27, 1923, in the circuit court of Mineral county defendant was permitted to file his plea of non assumpsit and three special pleas, and at the same time he gave notice to plaintiff of his claim of recoupment in the action. By agreement a jury was waived and the court substituted in lieu thereof, and it was further stipulated that an agreed statement of facts submitted to the court at the former hearing, as well as certain testimony taken, should be considered at the retrial. Defendant, over plaintiff's objection, was given leave to take additional testimony not contradictory to the said agreed statement.

On June 14, 1923, the circuit court entered its final order. It rejected all of defendant's special pleas, refused to consider his notice of recoupment, rejected the additional testimony authorized to be taken by the prior order, and upon the same agreed statement of facts and oral testimony considered at the former trial entered the judgment complained of.

The agreed facts are that defendant, trading under the name and style of "Cross Bros. Coal Company, " as consignor, at the direction and order of the Cross Fuel Company, shipped one of plaintiff's cars loaded with coal to Philadelphia Export Company, as consignee at Greenwich piers. Defendant directed that the car be shipped "freight collect." It was shipped September 21, 1920, and was received by the consignee at the delivery point, but the freight charges and war tax thereon were unpaid. There is no controversy over the amount of the charges, and the real question, as we stated it in our previous opinion—

"is whether the consignor can be compelled to pay the freight charge on a shipment made collect, when the carrier has delivered the freight to the consignee without collecting the freight charge from it."

Defendant developed his proposition that plaintiff cannot recover the freight charges from him after failure to collect from the consignee by his three special pleas aforesaid.

Special Plea No. 1 states that, having delivered the car to the consignee without collecting the freight charges from the consignee, plaintiff violated its agreement with defendant and the instructions given by him, and therefore cannot recover.

Special Plea No. 2 says that, having delivered the car of coal to the consignee without first securing payment of the freight charges, plaintiff violated the rules of the Interstate Commerce Commission, and the provisions of 41 St. L. 479 (U. S. Comp. St. 1923, § 8565), forbidding discrimination as between shippers; that it is therefore guilty of an illegal act. as well as of a breach of its contract with defendant, greatly to the damage of defendant, and therefore cannot recover

Special Plea No. 3 alleges the same illegal act on the part of plaintiff, and asserts that by reason thereof plaintiff is estopped from maintaining its action; and that by reason of plaintiff's acts defendant has sustained damages to the amount of plaintiff's demand.

The notice of recoupment sets forth similar matters to those contained in special pleas Nos. 2 and 3, and concludes that de-fendant has been damaged to the amount of plaintiff's claim.

We have stated the real question at issue; it may be further narrowed by stating that we must determine defendant's liability or nonliability in the light of the federal Interstate Commerce Act, as amended by Act of Congress of February 28, 1920, c. 91, § 405 (Barnes' Federal Code 1922 Supp. § 7886 [U. S. Comp. St. Ann. Supp. 1923, § 8565]), that being the statute in effect when the shipment in this case was made. Section 7886 reads in part as follows:

"It shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

"From and after July 1, 1920, no carrier by railroad subject to the provisions of this act shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the Commission may from time to time prescribe to assure prompt payment of all such rates and charges and to prevent unjust discrimination: Provided, that the provisions of this paragraph shall not be construed to prohibit any carrier from extending credit in connection with rate and charges on freight transported for the United States, for any department, bureau, or agency thereof, or for any state or territory or political subdivision thereof, or for the District of Columbia."

Defendant notes particularly the language quoted which forbids the carrier from delivering or relinquishing possession of freight at destination until all charges have been paid, and upon that provision founds his argument that plaintiff has performed an illegal act which bars it from recovery.

Plaintiff, on the other hand, relying upon our case of Coal & Coke R. R. Co. v. Buckhannon River Coal & Coke Co., 77 W. Va. 309, 87 S. E. 376, L. R. A. 1917A, 663, and other authorities, asserts the primary liability of a consignor for freight, irrespective of any directions he may give as to collecting the freight from the consignee, and further argues that no act, agreement, or omission could, under the Interstate Commerce Act, bar the carrier of its right to recover the freight charges owing to it. It cannot be estopped, says plaintiff in effect, into discriminating in favor of any consignor.

In determining the rights of these parties it is necessary to ascertain exactly the nature of their contract. In the ordinary case we would look primarily to the bill of lading issued to cover the shipment, but here there seems to have been none, and counsel in the briefs treat the case as if there were none. However, plaintiff argues that, in the absence of a bill of lading, "the rights and liabilities of the parties are regulated by the uniform bill of lading so far as applicable, " citing Standard Combed Thread Co. v. Pennsylvania R. R. Co, 88 N. J. Law, 257, 95 Atl. 1002, L. R. A. 1916C, 606, and on this point we think it is correct. We so held in Hubbard Grocery Co. v. Payne, etc., 91 W. Va. 273, 118 S. E. 152, where we said:

"(1) Where the carrier has failed to issue to the shipper a bill of lading the contract set out in the standard bill of lading prescribed by the Interstate Commerce Commission will be implied as the agreement between the parties The law was intended to operate in all cases where a carrier receives goods under an agreement, oral or written, for their...