89 S.E. 1057 | N.C. | 1916
Plaintiffs sued for damage to two car-loads of dewberries shipped by them over the defendant's and connecting lines of railways from Cameron, N.C. to Buffalo, N. Y., in June, 1912. They alleged that by reason of negligent delay on the part of defendant and its associate (87) carriers the berries became mouldy and they could not, on that account, be sold in the Buffalo market for the ruling price at the time of delivery. There was proof of the delay in transportation beyond the usual time and of depreciation of the berries. The bill of lading contained this clause: "Claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than ten days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event." One of the cars arrived at Buffalo, N. Y., 20 June, 1912, and the other 24 June, 1912, where they were delivered to J. H. Gail, the consignee, the berries having been shipped by plaintiffs on consignment. No claim for damages was filed within ten days after delivery of the goods at Buffalo, but a written claim was filed with the defendant on 6 September, 1912. Plaintiffs notified the defendant's agent at Cameron, N.C. orally, within the ten days after delivery of the berries to the consignee, that they would make a claim for damages.
At the close of all the evidence the court, on motion by defendant, entered a judgment of nonsuit, and plaintiffs appealed.
There was evidence of negligence for the consideration of a jury, and the only question left open is the one as to the validity of the clause in the bill of lading as to filing a claim for damages. The plaintiffs did not comply with this requirement, nor do we think compliance with it was waived by the defendant. The *133
same question practically was presented in Lytle v. Tel. Co.,
But we are not aware of any case, decided by the Supreme Court of the United States in which a provision for presenting claims like the one under consideration has been held to be valid, and in the absence of any such declaration by it, controlling the matter, we must decide according to our notion as to the law, especially where the point has (89) been well settled by precedents in this Court. We simply follow what has before been decided upon the same question. Mfg. Co.v. R. R.,
Our attention was called, on the argument, to the fact that the Interstate Commerce Commission had strongly recommended the adoption by the defendant and other carriers of a uniform or standard bill of lading (which was approved by the Commission), containing among others the following clause: "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, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable." The first day of September, 1908 (90) was indicated as the day for the new bill of lading to take effect, and be sustained for those in former use, and "the intervening period (27) June, 1908, to 1 September, 1908) is allowed for printing new bills and using those on hand." Reasons for suggesting the standard form are well stated by Hon. Martin A. Knapp, chairman of the Commission, in an opinion reported in 14 Interstate Commerce Reports, at p. 346, the standard bill of lading being set forth at p. 351 et seq. The defendant and other carriers, it appears, complied with the suggestion of the Commission and filed with it bills of lading conforming thereto. It would seem therefore, that the bills of lading issued to plaintiffs by defendant were two of the old type, which were used by inadvertence or mistake. If the defendant, at the time of these shipments, had adopted the uniform bill of lading, it would supersede the obsolete ones, and, under such a bill, the plaintiff would have complied with its terms, as they filed their written claim within the time fixed by it. As the case must be tried again because of the error already pointed out, we need not pass upon this question, nor determine whether we can take judicial notice of the substitution of the new bill for the old one by filing the former with the Interstate Commerce Commission, under the principle stated in S. v. R. R.,
We do not think the case of Mitchell v. R. R., 84 S.E., (Ga.), 227, is adecision upon the validity of a clause in a bill of lading continuing the ten days limit for presenting claims. The reasonableness of the time was there admitted by the parties, and there was no point made about it, and the Court states that, "for this reason, the question need not be *136 considered." The only matter involved was whether the stipulation was required to be supported by a consideration.
We do not see why, in respect of notice as to a claim for damages, there should be any real distinction between perishable products and other goods. If vegetables, for example, are damaged or partially spoiled when delivered, they will deteriorate rapidly, and a notice on the tenth day after arrival or delivery will be no more beneficial to the carrier than one at a much later time. The vegetables may, even at the expiration of so short a time, have been disposed of or entirely perished, and knowledge then acquired for the first time would be of no avail.
When these provisions as to the time for filing claims are valid, the written claim need not be expressed in any special way, so that it is a plain and intelligible statement of the demand. In respect to this matter,Justice Hughes said in Railway Co. v. Blish Milling Co., supra: "Granting that the stipulation is application 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 (91) required that the claim should be made in writing, but a telegram which in itself or taken with other telegrams contained an adequate statement must be deemed to satisfy this requirement." We so held in Lytle v. Tel. Co., supra.
The plaintiff having shipped the goods on consignment, can maintain this action, as the party interested or the one aggrieved by defendant's negligence; and there was evidence of sufficient delay to carry the case to the jury. Rollins v. R. R.
There was error in ordering the nonsuit, which reverses the judgment and requires another trial.
New trial.
Cited: Reynolds v. Express Co.,