*1 pany is subject garnishment at judgment the suit of a creditor the insured.
In ascertaining
meaning
policy
pro
question,
all the
visions of
policy
must be considered
if
the terms are uncer
tain, or
susceptible
meanings,
two
meaning
is to be
which is more favorable to th'e assured. This
is
rule
law sustained
long
a
line
eases down to the
recent
al.,
case
Swanson et
Cas. Co. (Mo.),
fond Marine, Accident Plate Glass Ins. Co. and Travelers’ Ins. Co., supra, construing language policy in the before this con tract, view, our cannot be viewed other than as an indemnity against liability. It follows, under the case, conceded facts thi'at when brought action, the defendant was indebted policy insured under indemnity in question, and that party. It is ordered affirmed. Daws, P. J., and Nipper, J., concur. Nurseries,
Mount Arbor Corporation, a Respondent, v. American Railway Express Appellant.* Company, Corporation, Appeals. Opinion January 10, St. Louis Court of filed 1928.
n *2 New; Juris-Cyc. Carriers, 10CJ, p. p. n. *Corpus 8n. References: New; p. 340, n. 72. Haley
Hostelter & appellant. for Ras F. respondent. Pearson D. Wilkins for by the plaintiff, C. This was con- BENNICK, action instituted $212, alleged value signor, to the recover from defendant the sum of an latter failed and which the shipment interstate of merchandise neglected by par- A the consignee. jury to to was waived deliver the finding resulting ties, alone, in a and the cause the court tried before for, in sued from plaintiff favor for full amount the h,as duly appealed. which defendant say they it all in conventional pleadings Suffice that to form, for the upon presented, save and are immaterial the issue here plaintiff’s allegation peti- to in answer that the claim referred in the daj'S months and fifteen tion was filed with within six not defendant mentioned, was, shipment therefore, barred. after the date of the question in on shipment The was made evidence disclosed that the plaintiff January 25, 1923, Iowa, to a customer of Shenandoah, from Carolina, period of five company Kittrell, and that a from North delivery ten a reasonable time to would have been delivery specifically that consignee. found no same to the court The defendant, by but same was lost shipment was made the transit, give written notice of plaintiff did not defendant days. period of and fifteen its claim within six months by finding, in its the lower court was case, The declared law the shipment having for its defendant, received the merchandise therefor, receipt lading its and bill destination, having issued delivery neglected tine having reason and failed to make transit, liable to lost became was merchandise damage thereof; herein and that the loss sued value reasonable be made of claims must not within the classification for did fall days after six months and fifteen writing carrier shipment date of precedent as a recovery, condition but that class loss excepted requirement. said from
As question the case comes to the sole for our determination plaintiff’s right whether to recover for the loss incurred reason shipment question may depend made to timely filing by in writing, it of a claim provisions lading of the bill of event of “failure to make de- livery,” bring or whether the of this case it within class of facts required. claims as to which no notice is express receipt,
Section 7 at of the uniform effect the time of plaintiff, as follows: issued defendant to reads “Except loss, damage, injury complained where or of is due to delay damaged being unloaded, loaded or or while transit negligence, carelessness or as conditions to re- covery writing originating claims must be or deliver- made ing *3 delivery property, or, carriers within six months after of the in case 'of delivery, failure to make then within six months fifteen days shipment; loss, damage, delay after or shall date of and suits for when, day only years be after date instituted within tAvo one Avriting given by notice in car- the carrier to the claimant ’’ any part parts has thereof. rier disalloAved the claim or or language employed It AArill in the above re be obseiwed that ceipt giving of AAdth reference to the classes of claims as to bodily of not'required notice is almost from the text cer was taken (Act 38 provisos 4, 1915, tain of March of the Cummins Amendment 176) (Act of 1196, 1197, Stat. Commerce Act ch. to the Interstate 4, February by 24 7 1887, 379, 104, Stat. ch. as amended section of 29, 584, 593, 3591), 34 Which in 1906, the Act. of Stat. ch. were June terpreted in by Supreme the case Barrett the United States Court of 85, 857, 45 to as Pelt, 437, v. Van 268 U. S. 69 L. Ed. S. Ct. read f oIIoavs : further, any unlawful for such common
“ProAÚded That it shall be provdde by contract, regulation, or a shorter rule, carrier to otherAvise ninety days filing and for the period giving for notice of claims than period months, for than four and for the institu- of claims a shorter years: Provided, loss, however, That if the tion of suits than two delay damage injury Avas or Avhile damage, complained or of due to negli- damage or transit being carelessness or unloaded or loaded filing as gence, nor of claim shall be then no notice of claim recovery.” to condition (Davis Roper v. Supreme United States Court As construed 209, 28), 46 158, 70 L. Ed. S. Ct. the last Co., S. Lumber 269 U. notice, above, necessity embraces three proviso dispensing with the delay; second, loss, damage, injury to First, or due classes of claims: unloaded; damage and, third, being transit. while or loaded ‘ ‘ or qualification respecting carelessness It also that the has been held 244 each, in- damage, loss, an of the or
negligence” is cases of element shall however, limitation we jury specified, subject, to such therein occasion hereafter to discuss. have case facts consideration of the would seem a casual
It fil- clearly delivery,” so to of “failure make that it one months fifteen writing by plaintiff, within six ing’ a claim pre- a condition would have been after the date of However, learned counsel to its to recover. cedent view), same taken the argue (and the court seems have lower falls classification of total loss before us the case rather consequence negligence,” in “damage transit carelessness as of statute, as well section which, provisions under claim filing a written was un- express receipt, the uniform necessary. ingenious, fails take into consideration the argument, while
This given undoubtedly phrase, meaning “failure to which must delivery,” shipping is used contract. Coun- the same make misdelivery that it has been held claims for are cov- sel concede “damage fall in defined as phrase, such do not the class ered misdelivery may transit,” suggest but not be category, separate and distinct. placed the same but As we Supreme read the States the United case Georgia, Milling Florida & Co., Alabama Co. Blish S.U. 541, 36 S. such distinction cannot be made. It held, delivery” in effect, was there that a to make was a “failure part delivery required by failure on th'e of the carrier make the provision contract, lading, bill of when that such meaning, its fair all cases of delivery, included failure to make *4 equally claim applicable, whether the arose reason of a mis- delivery, goods, destroyed, from fact that the had lost or the been as is th'e situation here. yet importance
But there is consideration which another of discloses nondelivery, showing here, that a mere as is of made does not make a “damage necessity case for so as to transit,” obviate the for the timely giving of will proof notice. It be recalled that of carelessness negligence is an on class claims essential element each of covei’ed proviso question naturally last of the the amendment. The as arises degree negligence proof to what shipper. of would be from the showing goods a
Manifestly, delivery of evidence to the car- rier, nondelivery by always presumption and it, would afford a away negligence, subject explained rebutted to be on the carrier. expressly however, “by It has been held, phrase, that careless- ’ ’ negligence, ness or in the Cummins Amendment in as. used exempt- ing necessity giving shippers from written notice of their damage, presumption claims for reference to the of negligence has no arising nondelivery; that, if from the mere fact statute should presumed one of given would be meaning, every be such case of loss damage would negligence, proof claim of written notice of Qf the always defeating purpose dispensed plain with, thus liability law; a rule that, consequently, is not what meant negligence fault, negligence fact, without or actual but rather & Ohio distinguished [Chesapeake presumptive negligence. from Railway Thompson Mfg. Co., 270 Co. v. U. S.
S. Ct. 318.] heretofore may have
Finally, we it doubt take whatever claim as a condi- timely filing existed of a necessity as to the by reason precedent tion sustained recover for dispelled by memoran- nondelivery shipment of the of a has been of Ameri- opinion Supreme dum of the the case United States (Adv. 548), 47 S. Railway Express can 71 L. Krieger, Co. v. Ed. 474, reversing judgment Supreme Court of Tennessee. typewritten copy We with have been favored counsel a having (the apparently been or- of the State court same not dered a case published), and find that such court had decision very shipment similar to in that the therein involved the one before transit, consignee, had been lost in and had been delivered to the never timely Supreme no written claim The Court of had been filed. negligence presumption Tennessee took the view that the erroneous arising negligence from nondelivery the fact of was such the stat- permitted ute not contemplated, view of which the carrier was require reversing filing shipper. notice or claim from Tn giving reasoning, rendered such as the author- herein, ity opinions therefor their which we have cited discussed Supreme is apparent it United States Court took the view delivery,” a case of was a “failure to make so that filing fif- writing, period of a claim in within a. of six months and teen a re- after date was a condition covery. given suggestion
Plaintiff makes the final its failure to have timely gave recovery, a written cannot its inasmuch as it notice bar specified verbal notice to defendant the time1 the uniform express receipt, accepted, began ivhich which under it defendant investigation. say point its it to of this it is a Suffice written expressly requires, conceding law that the same notice need any particular (Georgia, not be form Florida Alabama that, Milling Co., supra) ; addition, prohibition v. Blish against precludes unjust shippers discrimination between the waiver *5 it, of a carrier defenses available to such as failure claim writing. Phillips ant to J. Co. v. have timelv notice [A. 444; Ry. 662, 774, 236 35 S. Co., Grand Trunk W. U. S. Milling Georgia, Ry. Co., supra; & Co. v. Blish Florida Alabama 7; 186 App. Kemper Banaka Mo. 193 Mo. S. W. Co., v. Pac. R. 246
Milling App. 466, 8; Co. v. Mo. Pac. R. 193 186 W. Co., Mo. S. John (Mo. 282; Cunningham, son v. v. App.), Mo. Pac. R. 187 S. W. Co. (Mo. App.), 1003; Mo. Pac. R. Co. & S. W. Barton v. Louisville (Mo. 379; Cudahy Packing Chicago N. App.), R. Co. S. W. Co. v. (Mo. N. W. 201 W. App.), S. 596.] In holdings cited, view of the of the cases herein their authority, requested peremptory it follows that declara- defendant’s all tion of law the nature of a demurrer to should have the evidence given. Accordingly, been the Commissioner recommends that judgment of the Louisiana of Common Pleas be reversed.
PER foregoing’ opinion Bennicic, C., CURIAM: The is adopt- ed as the of the court. The of the Louisiana Court of Common is, accordingly, J., Pleas Danes, reversed. P. Becker and Nipper, JJ., concur. Harry Respondent.* T. Edwards, Appellant,
James Rubin, Appeals. Opinion February 7, St. Louis Court of filed 1928. Juris-Cyc. *Corpus Vehicles, 42CJ, p. References: Motor n. 85. Joseph Coyle appellant. F. M. Pirkey Earl