Lead Opinion
These shipments were all made under uniform bill of lading, standard form, approved by the Interstate Commerce Commission. It contained the following provision:
“Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of thé property, or, in case of failure to make delivei'y, then within four months after a reasonable time for delivery has elapsed. Unless claims,are so made, the carrier shall not be liable.”
The defendant set up the foregoing provision of the bill of lading, and alleged a breach thereof as a defense to the action. The trial court sustained such defense. The correctness of this holding is the controlling question in the case upon all counts. As to the foregoing defense, the plaintiff both denies and avoids. That is to say, it contends: (1) That it did give notice in writing, which was a sufficient compliance with the requirement of the bill of lading;, and (2) that the defendants waived any further or more formal compliance with such requirement.
The facts pertaining to the attempted compliance with this requirement of the bill of lading which pertain to shipments Nos. 2, 3 and 4 are practically identical; whereas those pertaining to shipment No. 1 are somewhat different. We shall, therefore, consider together the facts pertaining
I. Shipment No. 2 was received at Ottumwa on April 27, 1913, in bad condition. A joint inspection of the same was immediately had by Jacobs, the station agent of the railway company, and Yeitch, for the plaintiff. They joined in an inspection report upon blank forms of the railway company, as follows:
“Bracing broken, crates pushed forward, 50 crates in doorway broken, contents partly out on floor, contents shows rough handling.”
The same notation above quoted was endorsed by. Jacobs, the railway agent, upon the freight bill of the plaintiff, and delivered to the plaintiff. On the following day, the plaintiff delivered to the agent of the delivering carrier the following notification:
“Agent Wabash, City.
“Dear Sir: This is to notify you that, in due time, we will file a claim against your company for damages sustained on car berries P F E 12470 from Independence, Louisiana, to Ottumwa, arriving April 27th, 1913, as per the inspection report of which you have been, furnished a copy.
“Yours truly,
“E. H. Emery & Co.”
The third shipment in question arrived at Ottumwa on May 1, 1913, in bad condition. A joint inspection thereon was immediately had by one Williams for the railway company, and Veitch for the plaintiff. They joined in a report upon the blank forms of the company, which included the following:
“Bracing broken; crates shifted and broken; crates piled up in doorway; with part contents on floor: 100 c broken.
“Who was present when you made above inspection: L. C. Williams.
*692 “Describe its appearance and condition on such examination. Contents show very rough handling.”
The foregoing report was also entered upon the back of Lhe plaintiff’s freight receipt by the local agent of the delivering carrier, as follows:
“Bracing broken, crates shifted and broken, crates piled up in doorway with part of the contents on the floor; 100 crates broken; contents show very rough handling.
“Received payment.'
“Thos. H. Jacobs, Agent.
“Per E. R. H., Cashier.”
On the same day, the plaintiff delivered to the agent of the delivering carrier the.following notice:
“Agent Wabash, City.
“Dear Sir:
“This is to advise you that we will file claim against your company for damages on G.\ F. D. X 56610 strawberries from Independence, Louisiana, arriving in Ottumwa, May 1, 1918, at 1:20 P. M. We will make this claim on the basis that the bracing was broken, crates shifted and broken, crates piled up in the doorway, with part of the contents spilled on the floor. One hundred more or less broken. This was inspected by your Mr. L. C. Williams and our Mr. P. E. Yeitch, a copy of the inspection report has been furnished you.
“Yours truly,
“E. H. Emery & Co.”
Shipment number four arrived at Ottumwa on May 22, 1913. The damaged condition of this car was claimed to be the result of negligent refrigeration, and not of rough handling of the car. The berries were badly decayéd. A joint inspection was also had of this car by representatives of both parties. They joined in a report, which contained the following: “Contents show every evidence of car being out of ice en route; contents show heavy decay.” The
“Agent Wabash, City.
“Dear Sir:
“This letter is to notify you that there will be a claim filed for insufficient icing and poor refrigeration on car berries A. R. T. 9068 arriving at 2:45 P. M. May 22, 1913. The berries were in fearful condition, the cases mouldy, the fruit leaking throughout, the cases showing every evidence that the car had not been properly handled en route. From the fact that the car had been iced at Moberly and St. Louis would prove the fact that the car was warm, upon its arrival at St. Louis. In due time, we will file a claim against your road as the delivering line. You have been furnished with a copy of the inspection report.
“Yours truly,
“E. H. Emery & Co.”
The plaintiff did not, within four months, present a claim in writing, except as shown in the foregoing. Our first question, therefore, is, Did the foregoing substantially comply with the requirement of the bill of lading that claims for damages “must be made in writing?” The question presented is controlled by the Federal law. We ai*e not at liberty, therefore, to deem our own previous decisions as authoritative. These would, without doubt, require an affirmative holding. It will be noted that the written notices or letters delivered to the agent by the plaintiff spoke in the future tense. Two of them stated that claim would be filed “in due time.” The argument for the appellee is concern trated largely upon this feature of the form of the notice, in that it indicated a purpose to file, in the future, a more formal claim; and that it thereby indicated that the plaintiff itself did not deem the writing as a sufficient compli
“We will make claim against railroad for entire contents of car at invoice price. Must refuse shipment, as we cannot handle it.”
The bill of lading had precisely the same provision as is under consideration in the case at bar, and it was pleaded by the railroad company in defense. It was held that the telegram was a sufficient compliance with this requirement of the bill of lading. In that case, as in this, the telegram spoke in the future tense. The amount of damages was not specified. No more formal claim than the telegram was made within four months. It is urged by the appellee that the case is not controlling, because it involved the entire carload, and because it involved a question of delivery.
“In the preceding telegrams which passed between the parties, and are detailed by the state court in stating the facts, the shipment had been adequately identified; so that this final telegram, taken with the others, established beyond question the particular shipment to which the claim referred, and was, in substance, the making of a claim, within the meaning of the stipulation, — the object, of which was to secure reasonable notice. IVe think that it sufficiently ap-' prised the carrier of the character of the claim; for, while it stated that the claim was for the entire contents of the car hit invoice price,’ this did not constitute such a variance from the claim for the value of the flour as to be misleading; and it is plain that no prejudice resulted. Granting that the stipulation is applicable and valid, it does not ■ require documents in a particular form. It is addressed to a practical exigency, and it is to be construed in a practical way. The stipulation required that the claim should be made in waiting; but a telegram which, in itself, or taken with Other telegrams, contained an adequate statement, must be deemed to satisfy this requirement.”
We think the case is authority upon the question before us. It has been so treated by a number of other state courts of last resort in similar cases. Shark v. Great Northern R. Co., 37 N. D. 342 (164 N. W. 39); Baltimore & O. R. Co. v. Leach, 173 Ky. 452 (191 S. W. 310); New Orleans & N. E. R. Co. v. Wood, 112 Miss. 614 (73 So. 615); Illinois Cent. R. Co. v. Bauer, 114 Miss. 516 (75 So. 376); Snyder v. King, (Mich.) 165 N. W. 840. See, also, Southern Pac. Co. v. Stewart, 147 C. C. A. 630 (233 Fed. 956). The inspection report and the notation upon the freight receipt made by
II. The evidence relating to shipment No. 1 and the damage thereto is more meager than that considered in the foregoing division. This shipment arrived at Ottumwa on May 4, 1912. The car and the berries contained therein were damaged, apparently, by rough handling. At the request of the plaintiff, the local agent of the delivering carrier immediately made an inspection of the contents of the car and reduced his report to writing, and endorsed the same upon the back of the freight receipt ovei*' his signature. Such endorsement was as follows:
“Blocking in door broken, one end of car. Contents jammed also in door. Estimated 150 crates smashed. Part of contents on car floor.”
A somewhat anomalous situation, however’, is made to appear in this record. By virtue of certain orders of the Interstate Commerce Commission, promulgated and published in February and March, 1914, and duly pleaded and proved herein, it is made to appear that the particular requirement Tinder consideration herein had not been universally adopted by the railroad companies, and that the same was not in force at all in certain sections of the country; and that its enforcement in other parts of the coun
“For the purpose of promoting uniformity as to the substance and form of bills of lading, the carriers operating generally in official and western classification territories, after numerous conferences with shippers and this Commission, covering a considerable period of time, agreed upon what was designated as the ‘uniform bill of lading,’ which, upon final submission to the Commission, was, in a report announced June 27, 1908, recommended by it for use among all carriers, lá I. C. C. 316. In that report, it was indicated that the Commission would not, at that time, undertake to order the carriers to use this form of bill of lading, and it was made clear that the recommendation thereof was to be understood as subject to such modification or change as might be found necessary, either by experience or upon further investigation. The form and contents of the bill of lading thus agreed upon by shippers and carriers, and recommended by the Commission, was adopted by most of the carriers in the territories mentioned, and its provisions embodied in their freight classifications, which were published and filed with the Commission, thus becoming a part of their established tariff schedules. Among these provisions was the following (Section 3, Paragraph 3) : ‘Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, ox*, in case of failure to malee delivery, then within foxxr months after a reasonable time for delivery has elapsed. Unless claims are so made, the cax*rier shall not be liable.’ It has been disclosed by investigation and otherwise that,, duxúng much of the pexfiod since these provisions became part of the tariff schedules of said cax*riers, the provision above quoted has, to a greater or less , extent, been disregarded by
If the foregoing order of the Interstate Commerce Commission can be regarded as authoritative for any purpose, it. is, by its terms, applicable to each and áll of the shipments involved herein.. It is naturally urged by the appellees that their rights were vested, and that no order of the Interstate Commerce Commission could relate back and affect such rights. The argument is doubtless sound, so’ far as any actual rights of the appellees are involved. As already indicated, however1, it is not a matter of right to the appellees to repudiate their waiver, if waiver there was. They are protected at that point, if protected at all, by the operation of a rule of public policy. If the recognition of a waiver tends to discrimination, it will not be recognized by the courts. If it does not so tend, it will be recognized. The Interstate Commerce Act has conferred upon the Interstate Commerce Commissioners a certain power of discretion in details which is to be used in aid of, the practical purpose and operation of the statute itself. The approval vf the form of a bill of lading is within the power thus conferred upon such board. It will be seen, from an examination of the ruling promulgated, that the enforcing of the provision here under consideration had itself become a discrimination, as between shippers, and that such discrimination could be avoided only by a present waiver of such requirement, for a limited time. We think that the ruling thus promulgated by the Interstate Commerce Commission was within its power, and that it was authoritative as a finding that a waiver of such requirement did not, under existing conditions, tend to create discriminations; and that such waiver tended to uniformity and to the avoidance of discrimination. In the presence of this fact so found by this tribunal, we ought not to say that we will not recognize
“Any agreement, declaration, or course of action on the part of him who is to be benefited by the contract which leads the other party to believe that, by conforming thereto, the forfeiture will not be incurred, will and ought to estop the promisee from insisting on the forfeiture.”
And again:
“ ‘But it may be broadly asserted that if, in any negotiations or transactions with the assured, after knowledge of the forfeiture it recognizes the continued Validity of the policy, or does acts based thereon, or requires the insured, by virtue thereof, to do some act, or to incur some trouble or expense, the forfeiture is, as a matter of law, waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel,‘ ” — the foregoing being quoted*706 from the opinion in Titus v. Glens Falls Ins. Co., 81 N. Y. 410.
We do not think that the appellant is in any position to obtain, on this appeal, a review of such rulings. The garnishment was a part of the method of service of the attachment. The attachment proceeding is not a part of the main case, except in' a collateral sense. The statute expressly provides that proceedings relative to the attachment are to be deemed independent of the main case, and only auxiliary thereto. Code Section 3877. If appellant’s mo
V. The point is urged by appellant that, in the event of a reversal, the case should be remanded, with directions to enter judgment, rather than for a new trial.
There is nothing in the terms of the bill of lading that requires the adoption of this method of measuring the damage. Granting that it would be a proper method, if the plaintiff had sued for damage to the entire carload lot, he did not do so. It is argued for appellees that the evidence shows that the damages permeated the whole shipment. Even if that be true, the plaintiff had a right to waive it and to confine its claim for damages to such berries as were wholly destroyed. The rule required by the bill of lading, and adopted by the plaintiff, is more favorable to the defendant appellees than the ordinary rule of measure of damages which would obtain were it not for the requirement of the bill of lading. We reach the conclusion, therefore, that, upon a remand of the case, it should be with a direction to the trial court to enter judgment for the plaintiff on the first three counts of its petition: namely, those involving the shipments originating at Independence, Louisiana.
Concurrence Opinion
I concur in all but Division 3. As to it, I think it is unnecessary for us to decide the point in this case.