Williamsport Hardwood Lumber Co. v. Baltimore & O.R. Co.
| Decision Date | 11 February 1913 |
| Citation | 77 S.E. 333,71 W.Va. 741 |
| Parties | WILLIAMSPORT HARDWOOD LUMBER CO. v. BALTIMORE & O. R. CO. |
| Court | West Virginia Supreme Court |
Submitted September 15, 1910.
Syllabus by the Court.
A consignee of lading under a contract of shipment by a common carrier has a beneficial interest therein, entitling him to sue for and, upon proper proof, recover damages for loss or injury thereto, or for unreasonable and negligent delay in delivery.
Delivery of the lading to the first carrier in condition for safe transportation over its line warrants the presumption, in absence of proof to the contrary, that the lading remained in such condition when received by each succeeding connecting carrier, including the terminal carrier, and that the loss injury, or delay was occasioned by the latter's negligence.
A clause in a bill of lading given by a carrier for goods shipped, providing that "claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property *** no carrier hereunder shall be liable in any event," relates to the loss of and injury to the goods, and does not preclude recovery for delay in transportation.
A carrier cannot by contract preclude recovery for damages to a shipment caused by its negligence.
Upon demurrer to the evidence by defendant, it is error in the trial court to direct the jury to find the full amount of plaintiff's claim, especially where such evidence is vague, uncertain, indefinite, and in a substantial degree incompetent and therefore inadmissible. Such error is not cured by directing the jury to return to its chamber and further consider of its finding, and by its doing so finds the same amount as in the first instance.
A right of action against a common carrier for injury to goods while in course of transportation is assignable.
(Additional Syllabus by Editorial Staff.)
In an action against a carrier for loss of goods, the failure of the declaration to allege compliance with a provision of the bill of lading requiring notice of claim for injuries renders the declaration subject to demurrer.
U. G Young, of Buckhannon, for plaintiff in error.
D. H Hill Arnold, of Elkins, for defendant in error.
The plaintiff in this action seeks to recover of the defendant damages for loss of and injury to parts of a shipment of machinery from Axton, Va., to Wees Siding, W.Va. A trial was had; and upon demurrer to the evidence by the defendant the court directed the jury to find a conditional verdict for the plaintiff for the full amount of its claim, and over defendant's objection entered judgment on the verdict. The case is now before us upon a writ of error.
1. The first assignment demanding consideration relates to the action of the court in overruling the demurrer to the declaration. The defendant insists that the declaration is fatally defective in at least two respects: (a) Failure to aver title in the plaintiff; (b) failure to aver notice of loss and damage to the shipment.
(a) The declaration does sufficiently aver title in the plaintiff, but not with that degree of certainty usually observed in good pleading. It avers delivery of the shipment by J. E. Williams to the carrier at Axton, Va., to be by it and other connecting carriers delivered to him as consignee at Wees Siding. Both counts contain the same averments, and, for the purpose of this action, sufficiently aver title. No rule of pleading requires an averment of absolute ownership in actions of this character. A consignee or bailee, if not the true owner, has a special property in the goods sufficient to maintain the action. In fact, any one having a beneficial interest may sue and recover. But the legal and reasonable presumption is that the consignee is the owner, entitled to accept delivery at the terminal point and sue for failure of the carrier to deliver in good condition; and, in the absence of authority from him, he is the only one to whom the carrier, in the discharge of its obligation as such, can make delivery, regardless of his actual interest. 6 Cyc. 510, 515. The fact that, as in this case, the consignor and consignee is the same person, adds emphasis to this otherwise reasonable rule. Although the declaration does not with precision aver title in the plaintiff to the property constituting the shipment, it nevertheless avers assignment by Williams for a valuable consideration of all his right, title, and interest in the damages the recovery of which it seeks in this action. He substituted it in his stead, with authority "to institute proceedings upon said claim if it so desires, or to settle, compromise, or adjust it in any manner they see proper." The assignee of any account may maintain thereupon any action in his own name which the original payee might have brought. Code 1906, c. 99, § 14, serial section 3452; 4 Cyc. 67-69; Railroad Co. v. Read, 87 Va. 185, 12 S.E. 395; Tyler v. Ricamore, 87 Va. 466, 468, 12 S.E. 799; Lee v. Hill, 87 Va. 497, 12 S.E. 1052, 24 Am.St.Rep. 666; Dillard v. Collins, 25 Grat. (Va.) 343.
(b) This objection finds support in that clause of the bill of lading providing, in the form usually employed by carriers, that "claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property; and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event." Neither party offered evidence tending in any degree to show the "due time for the delivery" of the shipment at its destination. Nor is it permissible to assume from the delay in delivery that 30 days or more elapsed after the expiration of the "due time." Hence, whether that part of the clause is valid because reasonable, or invalid because unreasonable, it is unnecessary to decide. In fact, it cannot properly be decided, in the absence of the testimony suggested. The clause, so far as applicable to the facts in the record, is upheld by the weight of authority. Reason favors it. It is fair and just to the carrier, and works no hardship on the shipper. Compliance with its requirements benefits both. It affords reasonable notice to the former, admonishing it of liability which it may avoid by finding and delivering the lost goods, or by adjusting the loss with the owner without litigation. Bills of lading contain the constituent elements of contracts; the usual consideration being a reduced rate of transportation because of this provision. The same rules of construction generally applicable to contracts apply with equal force to bills of lading. The rule is well settled that, in the absence of fraud by the carrier's agents, the presumption is that the shipper read, understood, and assented to the conditions expressed in the contract of shipment, and that he cannot relieve himself from its terms by showing its execution by him without due care or in ignorance of its terms. 4 Elliott on Railroads, § 1502a. Construing a clause identical in its terms with that before us, the case of Carbonic Co. v. Railroad Co., 107 Va. 323, 58 S.E. 569, 13 L.R.A. (N. S.) 753, held it valid and binding, and compliance therewith a prerequisite to the maintenance of an action to recover damages, notwithstanding a statute of the state providing that "no contract, receipt, rule or regulation shall exempt any common carrier, railroad or transportation company from the liability of a common carrier which would exist had no contract been made or entered into." Trust Co. v. Railroad Co. (C. C.) 107 F. 628.
We hold the clause reasonable and valid, so far as applicable to the facts of this case. Williams, the shipper, evidently undertook to comply with its conditions, thus recognizing its binding force and effect. He at first refused to accept the lading because of its impaired condition on arrival, and notified the local agent of the terminal carrier of his refusal. He then wrote to the claim agent of the Danville & Western Railway Company, the initial carrier, and of the Western Maryland, the terminal carrier. While the defendant objected to the proof of the notice, it sufficiently indicates at least an effort on his part to communicate knowledge to the proper representatives of the companies.
If, however, the duty devolved on the plaintiff to show these facts by proof, a like duty required it to aver in its declaration compliance with the condition in this respect. U.S. Mail Line Co. v. Carrollton Co., 101 Ky. 658, 42 S.W. 342; Trust Co. v. Railroad Co., supra; 6 Cyc. 506; 1 Hutch. Carriers, § 442 (§ 259). The author in the section last cited holds that the condition requiring claims to be filed within a definite time will be construed as referring to claims for injuries to the goods shipped, and not to delay in delivery. Delaney v. Express Co., 70 W.Va. 502, 74 S.E. 512.
The case before us is readily distinguishable from Bosley v. Railway Co., 54 W.Va. 563, 46 S.E. 613, 66 L.R.A. 871. The latter held the clause invalid, not because compliance was a prerequisite to recovery, but because of the unreasonable limitation upon the extent of plaintiff's recovery for the damages caused by defendant's negligence.
The circuit court should have sustained the demurrer, with leave to the plaintiff to amend its...
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