79 W. Va. 691 | W. Va. | 1917
This writ of error seeks review of a judgment for $322.73, rendered on a verdict of a jury, in an action of assumpsit for the value of certain property of the plaintiff, entrusted to the defendant, a common carrier, for transportation, in the manner hereinafter stated, and alleged to have been lost by a breach of the contract of carriage, damages to other property shipped with it and delivered and deprivation of use of all the property, occasioned by delay in transportation and delivery.
The property in question was a saw-mill and machinery and appliances used in connection with it. Having loaded them in an open car of the Chesapeake & Ohio Railway Co., the initial and connecting carrier, at Peytona, Boone County, the plaintiff took a bill of lading, showing consignment thereof to himself at Erbacon, Webster County, West Virginia. The property was described in the bill of lading as follows: “1 car saw mill machinery.” In addition to the larger pieces of machinery constituting the mill proper, there were a great many small articles in the car, such as wrenches, dies, cold-chisels, bolts, taps, saw-teeth, guides, boxings, a square, a hand-saw, a shovel, saw swedges, log trucks, an equalizing saw, belts, governors, pulleys, lubricators and whistles. Some of these, valued at about $190.00, were lost. The bill of particulars charges $10.00 for breakage, $7.73 for wrongful storage charges, $15.00 for expense of reloading, alleged to have been wrongfully caused by the defendant, $100.00 for damages to the machinery by exposure to the weather and $200.00 as damages by deprivation of the use thereof.
The shipment of the car to Sutton was. occasioned by the accidental interference of Rader and the error of the défend-
As to when Belknap had notice of the return of the car to Erbacon, the evidence is very indefinite. As late as August 10, 1914, he wrote the agent at that point, a letter of inquiry as to its location, and stated that he had understood it had been rebilled from Erbacon to Sutton and then taken to Clarksburg, and that the agent at Clarksburg had written him that it had been rebilled to Erbacon. On August 31, 1914, he took a letter from the agent at Sutton to the superintendent at Grafton, saying it had been at' his station unclaimed for forty days. Though he does not give the date of the period through which it remained there, it antedated the shipment to Clarksburg, and must have been in April and May. Before he went to Grafton, taking tMs letter with Mm, he had been at Erbacon to see about the mill, ^.nd tMs trip must have been made between August the 10th and August 31st. The authorities at Grafton agreed to reduce the charges and he paid the reduced bill, under protest, September 12, 1914, regarding it as being still excessive. According to a bill dated July 21, 1915, the charges amounted to more than $150.00. He says he paid something over $100.00, but there is a receipt in the record for $93.52.
The time intervening between the first arrival at Erbacon and the unauthorized reshipment to Sutton and the looseness or inadequacy of .the arrangement made with Taylor and Messenger for acceptance of the mill on behalf of the owner, are unduly emphasized in the argument. The deliv
The contract of shipment bound the carrier to deliver the goods at the place or station agreed upon. The owner could not be required to accept them elsewhere. Moore on Carriers, p. 238; Elliott on Railroads, sec. 1519; Arthur v. Railroad Co., 38 Minn. 95; Blade v. Ashley, 80 Mich. 90; Bank v. Champlain &c. Co., 60 Vt. 62. As the defendant could not compel the plaintiff to accept his property from it at any
The charges of freight from Erbacon to Sutton, Sutton to Clarksburg and Clarksburg to Erbacon, and demurrage at Sutton and Clarksburg, subject to which the property was redelivered at Erbacon, its place of destination, were founded upon the defendant’s own wrongful act, and were, therefore, wholly illegal and unjustifiable, and there could have been
If there is ground for reasonable doubt as to whether charges are proper, detention of the goods by the carrier pending an adjustment thereof and determination of the proper amount, does not constitute a conversion, so as to render the carrier liable for the value. Moore on Carriers, p. 280; Hett v. Railroad Co., 44 Atl. 910; Robinson v. Burleigh, 5 N. H. 225; Fletcher v. Fletcher, 7 N. H. 452; Vaughan v. Watt, 6 M. & W. 492; Hollins v. Fowler, L. R. 7 H. L. 757,
As the property was evidently not called for after its second arrival at Erbacon, earlier than Aug. 10, 1914, and the loss may have occurred between July 10, 1914 and that date, it is necessary to determine whether the carrier’s liability was absolute or qualified during that period. If the owner was not advised of its arrival nor bound to be at Erbacon awaiting it, the situation of the property throughout that period was a direct result of the original wrongful act, wherefore the liability would necessarily be absolute. Sometime after the first arrival, the property-was demanded. Even though Messenger’s testimony to the effect that he called for it more than once at Erbacon should be disregarded, it is clear that Belknap himself went to Sutton for it, when advised of its presence there. Then, if not before, the carrier had notice of the owner and of the mistake, through its agent, and so became obligated to return the property to its destination. There is no proof that the owner was advised of the probable date of the second arrival or delivery. Hence, it is manifest that he was under no duty to be at Erbacon awaiting its arrival.' The rule announced in Hurley v. Railroad Co., 68 W. Va. 471, Hutchinson v. Express Co., 63 W. Va. 128 and Berry v. Railway Co. 44 W. Va. 538, making it the duty-of the consignee to call for his goods in a reasonable time after their arrival, does not apply, because, under such
While proof of tender of tbe legal charges, or excuse for non-tender thereof, is, like the evidence as to most of tbe other material facts ragged and indefinite, it cannot be doubted that sometime between Aug. 10 and Aug. 31, tbe owner applied for bis property and was ready and willing to pay such charges, nor that tbe defendant knew it, nor that it insisted upon payment of the illegal charges. He had to get a statement from tbe agent at Sutton and carry it to Grafton, before any reduction was made, and, as late as Sept. 10, 1914, he took advice from his attorneys as to the mode of procedure for recovery of possession of his property. Known unwillingness to accept what is due, if tendered, excuses actual production of tbe money, Koon v. Snodgrass, 18 W. Va. 325; Shank v. Groff, 45 W. Va. 543.
In view of the clear, full and practically uncontradicted proof of tbe loss of tbe articles enumerated in the bill of particulars, as having been lost, and tbe damages to tbe residue of the property, and of liability for tbe cartage or demurrage charge and tbe expense of reloading, making, an aggregate exactly equal to the amount of tbe verdict, any errors that may have been committed in tbe admission of improper evidence or the giving of instructions for tbe plaintiff, are obviously harmless. Admission of proof of loss of profits derivable from tbe contract with Taylor and Messenger and tbe giving of an instruction based on it, may have been erroneous acts and likely were, but the errors, if any, were innocuous. No verdict other than that found and returned would be consistent with tbe law and the evidence. Under such circum
The judgment will be affirmed.
Affirmed.