253 F. 569 | D. Idaho | 1918
As a part of its defense the defendant sets forth the shipping agreement, one provision of which is to the effect that, unless notice of damages was presented in writing within 90 days from the unloading
“If loss, damage, or injury complained of was due to delay or damage caused or contributed to by the carrier, or its employSs, while being loaded or unloaded, or if damaged in transit by carelessness or neglect of the carrier, or its employes, then no notice of claim or filing of claim” would be required.
The plaintiff interposes á motion to strike out the part of the answer setting up this defense, and also interposes a demurrer to reach the same point.' The question raised by both tire motion and demurrer, upon which the cause is presently submitted, involves a construction of the language above quoted from the shipping contract, or, more accurately, a construction of substantially tire same language contained in the amendatory act of March 4, 1915 (38 Stat. 1196, c. 176, § 1 [Comp. St. 1916, § 8604a]). In so far as it is material, this act is as follows :
“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.”
So far as appears, the plaintiffs never gave any notice or made any claim of loss. As already stated, the horses were held at Green River for the period of 8 days, and it is to be inferred from the complaint that most, if not all, of the damage resulted from such detention. It is the defendant’s position that while the horses were so detained they were not “in transit,” within the meaning of the proviso above quoted, and that therefore the plaintiffs were not relieved from presenting a claim within the time prescribed, and, having failed to present such claim, they cannot now recover. It must be admitted that the meaning of the proviso is extremely obscure. The subject-matter which Congress had under consideration was the extent to which the carrier should be permitted to go in exacting notice and the presentation of claims for damages. In the principal clause it is declared that it shall be unlawful to require notice in less than 3 months, the filing of claims in less than 4 months, or the bringing of suit in less than 2 years. Such a provision would seem to be both clear and reasonable. But why an exception to it? Why, in the absence of fraudulent concealment or some extraordinary disability, excuse the shipper in any case from giving notice or filing his claim or commencing his suit within the period prescribed? No satisfactory answer has heen sug-, gested, and apparently none is at hand. We cannot with assurance, therefore, interpret the proviso in the light of the object intended to be accomplished, nor can a construction be condemned merely because thereunder the provision does not commend itself to us as being entirely reasonable.
Upon consideration, I am inclined to the view that the basis of classification intended by Congress must be found in the phrase “by carelessness or negligence.” It is used in no other place in the entire section, and in the absence of some other ground for classification it appears to be not improbable that the legislative mind made a distinction between liabilities resulting from the carrier’s negligence and those which rest upon a different basis, and accordingly declared that the carrier should not require notice of claims for damages arising out of its own negligence. While, for reasons which it is unnecessary to explain, we may be unable to assent to the wisdom or justice of denying to the carrier this right, such seems to he the intent of the proviso. So far as the facts in this case are concerned, the construction involves no lexical or grammatical difficulties. The damages claimed were not the result of delay or injury in loading- or unloading the horses; they were damaged “'in transit,” as that phrase is ordinarily understood, and by the carelessness and negligence of the carrier, if the averments of the complaint are true. The phrase “carelessness and negligence” undoubtedly qualifies “damaged in transit.”
In the case of a claim for damages suffered in the loading or unloading of a shipment, the grammatical relation of the phrase, especially when we consider the punctuation, is more difficult. But in
It follows that the matter in the answer to which their motion is directed is redundant and immaterial, and accordingly the motion will be allowed.