Western Md. Ry. Co. v. Cross

• Decision Date: 17 October 1922
• Court: West Virginia Supreme Court
• Parties: Western Maryland Railway Company v. J. E. Cross, Etc.

92 W.Va. 9

Western Maryland Railway Company

v.J. E. Cross, Etc.

Supreme Court of Appeals of West Virginia.

Submitted October 10, 1922.

Decided October 17, 1922.

1. CarrieDrs eclaration to Recover Charles From Consignor Not Demurrable Because Failing to Aver Delivery to, and Promise by, Consignee.

In an action by a railroad to recover from the consignor the freight charge for carrying a car load of coal' in interstate commerce, the declaration is not demurrable because it fails to name the consignee, or to aver the delivery of the coal to, or non-payment of the freight charge by, the consignee, where it shows the coal was shipped by the consignor, that he made an unconditional promise to pay the freight charges; and has failed and refused to pay it. (p. 11).

2. Trial -Judgment Rendered in Case Tried Without an Issue.

Reversed on Appeal.

Where an action at law is submitted by the parties to the court for trial, it is error for the court to try and determine the case in the absence of an issue, and a judgment entered upon its findings in such case is erroneous and will be reversed, (p. 11).

Error to Circuit Court, Mineral County. Action by the Western Maryland Railway Company against J. E. Cross, trading, etc. Judgment for plaintiff, and

defendant brings error.

Reversed and remanded.

Arthur Arnold, for plaintiff in error.

Chas. N. Finnell, for defendant in error.

Meredith, Judge:

Plaintiff recovered a judgment in assumpsit against defendant for $161.50, the aggregate of principal and interest of a freight charge for carrying a car of coal from Angle Siding, Mineral County, to Greenwich Piers, Philadelphia.

Defendant insists that his demurrer to plaintiff's declaration should have been sustained. The declaration shows that plaintiff is an interstate carrier and with its connections forms a continuous line of railroad from Angle Siding to Greenwich Coal Piers; that it had certain tariff rates in effect fixing the cost of carrying coal, and the rate between the two points was fixed at $2.98 per gross ton; that on September 21, 1920, defendant caused to be shipped over the plaintiff railroad from Angle Siding to Greenwich Coal Piers a car load of coal, and that the freight charge thereon, including war tax, amounted to $152.37, and which sum the defendant promised and agreed to pay to plaintiff, but that he has failed and refused to do so; this is the substance of the declaration. It will be observed that it does not name any consignee nor aver delivery of the coal to it, nor negative payment by it; it does however, in plain terms aver shipment by defendant, and his unconditional promise and refusal to pay. We think this is sufficient. The real question which defendant by his counsel attempts to raise on demurrer 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; that question does not arise on the declaration as drawn. We think the declaration states a cause of action and the demurrer was properly overruled.

The case was tried by the court in lieu of a jury; the evidence adduced consists of an "agreed statement of facts," and certain depositions taken by defendant. On examining the record, we find the defendant filed no plea denying plaintiff's demand, nor any plea alleging damages occasioned by plaintiff's wrongful or unlawful delivery of the coal to the consignee without collecting the freight charge, nor any failure on the plaintiff's part to carry out the...