71 W. Va. 741 | W. Va. | 1913
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.
(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, Ya., 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. Ho 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
(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”. bFeither party offered evidence tending in any degree to show the “due time for delivery” of the shipment at its destination. Hor is it permissible to assume from the delay in delivery that thirty 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 can not 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
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; Trust Co. v. Railroad Co.,
The ease before us is readily distinguishable from Bosley v. Railway Co., 54 W. Va. 563. The latter held the clause invalid, not because compliance was a prerequisite to recovery, but because of the unreasonable limitation upon the extent of plaintiffs 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 declaration.
Ho doubt plaintiff deemed the averment in the declaration, that "Williams was then under contract to cut and manufacture certain timber, sufficient to warrant evidence relating to special damage. If so, it was ill advised. The rule is well settled that in order to recover special damages the plaintiff must aver and prove the special contract out of which the breach arose, and show by competent proof knowledge thereof by the carrier at the time of shipment. This is the English rule, announced by Pollock, C. B., in Wilson v. Dock Co., L. R. 1, Exch. 177, followed in Hadley v. Baxendale, 9 Exch. 341, and the one universally adopted in this country. Scott v. Steamship Co., 106 Mass. 468; Railway Co. v Cole (Tex.), 16 S. W. 176; Murrell v. Express Co., 54 Ark. 22, 14 S. W. 1098; 4 Hutch. Carriers, §1367. In the Hadley case plaintiff sought recovery for delay in delivery of a mill shaft, during the absence of which the mill stood idle, thus occasioning serious loss and damage to the owners. The court held recovery not allowable in absence of knowledge by the shipper of the necessity of prompt delivery. But, while the rule is applicable in the case before us, and by
For reasons stated, the judgment is reversed, the verdict set aside, the demurrer to the declaration sustained with leave to plaintiff to amend, and the case is remanded to the circuit court
Reversed and Remanded.