C. G. Blake Co. v. Hocking Val. Ry. Co.

2 Ohio Law. Abs. 612

• Court: Ohio Supreme Court
• Decided: May 24, 1924
• Docket: No. 18607
• Status: Published

Opinion

This was an action in Cincinnati Superior Court brought by the Railway Co. for demur-rage. It was' filed in the short form of account, under 11334 GC., and alleged that the shipment was of coal from West Virgina to the docks at Toledo only part of the haul in Ohio being over its line. The original carrier was the C. & O. Ry. Co. All the demurrage was alleged to have accrued Dec. 1, 1911.

The Coal Co. set up several different defenses, and a counterclaim, and attached interrogatories, to all of which except a general denial a demurrer was sustained. An amended answer, counterclaim and interrogatories were filed and again demurrer was sustained. On trial a verdict was directed in favor of the Railway Co. and judgment entered on the verdict. The Court of Appeals affirmed the verdict.

The questions involved in the case set forth in the brief of the Coal Co. are:

1. Where a demurrage tariff expressly provided “Credit will be allowed fo.r railroad errors and omissions,” may these be set up in an answer?

2. Are such “railroad errors and omissions” those of the delivering carrier only, or of any carrier in the line of haul?

3. May identity of interest be shown between the initial and the delivering carrier?

4. May defendant set up a counter claim in an action for demurrage?

5. What is the period of limitation in Ohio, on action for demurrage accruing before Federal Transportation Act of 1920?

All these questions were ruled against the Coal Co. and its defenses denied it in the court belpw.

The Supreme Court overruled the motion to certify. 2 Abs. 474.