163 S.E. 31 | W. Va. | 1931
Lead Opinion
This is an action in assumpsit against The Chesapeake and Ohio Railway Company to recover damages because of the freezing of a shipment of lemon juice in transit between Oakland, California, and St. Albans, West Virginia. At the conclusion of plaintiff's evidence, the defendant demurred thereto, and the court of common pleas of Kanawha County, upon consideration thereof, found for the plaintiff and entered judgment on the conditional verdict for $650.00, interest and costs.
The goods were shipped on an interstate bill of lading, which contained the following conditions: "Claims for loss, damage, or injury to property must be made in writing to *359 the originating or delivering carrier or carriers issuing this bill of lading within six months after delivery of the property * * *; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness of negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery." These conditions are based on a Federal statute (Act of Congress of March 4, 1915, known as the first Cummins Amendment, chapter 176, 38 Stat. at L. 1196, 1197), which provides among other things, "That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded. or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery."
The courts in construing the statute have held that the purpose of the second clause quoted is to except some cases from the application of the general rule, and to provide that, as to them, no notice of claim nor filing of claim shall be required. The Chesapeake Ohio R. R. Co., v. ThompsonManufacturing Co., (W.Va.)
The plaintiff offered proof to the effect that the goods were in good condition when shipped, and that they were frozen and worthless when received. No specific acts of negligence were attempted to be proved. So, under the decisions cited, he must show that proper notice was given. Hubbard Grocery Co. v.Payne, Director General, etc.,
The issues raised on the demurrer to plaintiff's evidence are: Did the plaintiff file a claim of loss, and, if so, was it filed in time? The evidence on this phase of the case is as follows: "Q. Mr. Campbell, did you receive the lemon juice that was sent you? Mr. Strickling: We object, if that question assumes the delivery to the carrier. Mr. Smith: All right, we can get around that. Q. Mr. Campbell, I hand you what purports to be a bill of lading of The Western Pacific Railroad Company, bearing date the 15th of December, 1928, countersigned Sunset Gold Packing Company, by G. W. Edwards, and will ask you whether or not you ever saw that before? A. Yes, it looks like the same one I turned over to the railroad company. Q. Did you have that bill of lading when you turned it over to the railroad company — was it yours? A. The Sunset Gold Packing Company sent it to me with their invoice. Q. Is that the signature of Mr. G. W. Edwards, do you know? A. Yes, sir. Q. Mr. Campbell, there was a duplicate to that particular bill of lading, was there not? A. Yes, sir. Q. What did you do with that. A. They were both turned over to the C. O. Railway Company. Q. That was after you had filed claim for loss of goods? A. I filed the duplicate first, and then the original. The C. O. requested the original, and that was forwarded later."
Under the benign rule governing this Court in cases of demurrer to the evidence, it seems that we would be warranted in holding that such a proof of loss had been filed.Duty, *361 et ux. v. Williamson Hudson-Essex Sales Co.,
So, following the above rule, which was invoked in the case of Insurance Co. v. Wilson,
Judgment reversed; verdict set aside; new trial awarded.
Concurrence Opinion
When a plaintiff has closed his evidence, does a demurrer thereto, in which the plaintiff has joined, prevent him from supplying essential evidence inadvertently omitted? Admittedly not if he moves to set aside the joinder and to reopen the case before the court passes on the demurrer. Affirmative action on such motion is within the sound discretion of the court. But suppose the plaintiff does not perceive the deficiency in his evidence and makes no motion for leave to enlarge the same, what is his situation? Should the court summarily render judgment, or afford opportunity to the plaintiff to supply the defect? Reason and justice require the latter course, if it is reasonably apparent to the trial court that the necessary evidence exists. Such, indeed, seems to be the rule of Ins. Co. v. Wilson,
A demurrer to evidence is none too highly favored at best. Its only proper office is to test the legal right of a litigant on the facts. It is not a device for the entrapment of a litigant who, through inadvertence, has failed to develop in his evidence and essential element of his case.
It would seem to be unreasonable to require that the court must judicially know that such element can be established. In my judgment, it is sufficient if the court perceives that such evidence probably exists, or that the evidence on the vital point has been only partially developed as in the case at bar. This, as I apprehend, is the meaning of Lass v. Lubic,
Where, in the trial court there has not been a full development of a controlling point, the appellate court should remand *363 the case for such development to be made, if, from the record, it reasonably appears that the essential evidence exists.
These principles are in no wise affected by the fact that the trial court overruled defendant's demurrer to the evidence and entered for the plaintiff a judgment which cannot be upheld on the evidence as submitted.
Dissenting Opinion
The majority decision is based on Laas v. Lubic,
Gibson v. Hunter, decided in 1793 and reported in 2 H. Bl. 187 (instead of the reference above given), declared, on page 208, "the whole proceeding upon a demurrer to evidence to be under the control of the judge before whom the trial is had."Taliaferro v. Gatewood, decided in 1819, after repeating the above declaration in Gibson v. Hunter, continued: "If, therefore, by mistake or otherwise a material fact, on which the point in issue depends, and which the court judicially knows to exists, be omitted in such demurrer, it ought to be set aside as too uncertain for a judgment to be given thereon." So, if in the West Virginia decisions which cite and purport to rely on the rule of Gibson v. Hunter andTaliaferro v. Gatewood, the court judicially knew to exist theomitted facts, then such decisions were properly within the rule — otherwise they were not. Judicial knowledge of the omitted fact is the heart of the rule. This is clearly shown by the opinion in Taliaferro v. Gatewood, p. 323. The evidence omitted in that case was the writ in another action. The opinion specifies: "The case before us being of a record, in which, it is judicially known to the court that a writ existed and preceded the filing of the bill, our decision will have no effect as to cases in which ulterior evidence may or may not exist, and in which it is not certainly known to the court that it does exist. In such cases, the party must abide by the testimony he has exhibited." In the instant case "it is not certainly known to the court" that proof of loss was filed. Ulterior evidence of that fact "may or may not exist." Therefore, under the precise exclusion of Taliaferro v.Gatewood, *365 the plaintiff should "abide by the testimony he has exhibited." To decide otherwise is to repudiate Taliaferro v. Gatewood and to depart from the common law precedure relating to a demurrer to the evidence — a procedure the constitution of West Virginia has continued until it may be changed, not by the judiciary, but by the legislature. See Constitution, Article VIII, sec. 21.
If the joinder in a demurrer to the evidence is to be regarded as purely experimental on the part of the demurree, then fair play demands that the demurrer itself be treated as experimental on the part of the demurrant and that he be permitted to present his evidence whenever the demurrer is overruled. In such event, alas, the common law procedure on a demurrer to the evidence would be no more.
Dissenting Opinion
I am adverse to striking down and rendering ineffective a demurrer to evidence preserved by the Constitution. I can see no practical use of a demurrer and joinder therein, if the court is permitted to refuse to pass on the demurrer, on the ground that possibly plaintiff may strengthen his hand. It would enable plaintiff to try his case by piecemeal at the expense of defendant; and if the court below sustained the demurrer, plaintiff could then appeal and reverse the judgment at defendant's expense. In such a state of the law there would be little practical use in demurrers to your adversary's evidence. There would be little finality in so doing. It may be that a court, in the interest of justice, where plaintiff's counsel has failed through inadvertence, mistake or misconception to produce evidence clearly at hand which would make a prima facie case of recovery, should refuse to permit him to join in the demurrer. That would be in a case where the court judiciallyknows that such omitted evidence in fact exists, as pointed out in Judge Hatcher's dissent, and in Judge Maxwell's note of concurrence to the majority opinion. What is there in the instant case by which the lower court or this court judicially knows that Campbell made claim in writing within the prescribed time?
The case of Laas v. Lubic, on which the decision is predicated, illustrates the result of directing a new trial where *366
plaintiff has not made a prima facie showing by his evidence, to which a demurrer has been sustained. I protested against that decision, but did not dissent because other judges, more learned and able than myself, seemed to concur. I am not quick to dissent. The issue in that case was the place from which the stone fell which killed plaintiff's decedent. Plaintiff's evidence was not sufficient, and it was pointed out in the opinion that a witness who first discovered the body was not summond, and it was said in the opinion "all the evidence obtainable does not appear to be before the court." The judgment was reversed and the case remanded "to afford the plaintiff an opportunity to supply evidence necessary to sustain his case, if he can do so.' A fishing expedition for evidence was inaugurated. It caught no fish. His omitted evidence made it clear that he had no case. See Laas v. Lubic, (second appeal)