138 S.E. 290 | S.C. | 1926
Lead Opinion
December 16, 1926. The opinion of the Court was delivered by Action for damages for loss of goods.
The undisputed facts are that on March 5, 1920, a case of goods was shipped from Fall River, Mass., to Ernest L. Barton, at Chester, S.C. at the invoice price of $1,020.21. This shipment was made by the Fall River Bleachery, of Fall River, Mass., by the order and for the account of the firm of Watts, Stebbins Co., of New York. The plaintiffs in this case, Ridley Watts Co., are the successors of Watts, Stebbins Co., and as such successors are the alleged owners of the goods in question. The defendant Southern Railway Company received the goods en route, from the Clyde Steamship Company, at Charleston, S.C. on June 23, 1920, and transported them to Chester, where they arrived on June 29, where they were tendered by the defendants to the consignee, Barton, who refused them. On July 7, 1920, these goods, for some reason, were shipped from Chester by the agent of the defendant at that place, consigned to the Columbia Handkerchief Company, at Columbia, S.C. where they arrived on July 13, were refused by the Columbia Handkerchief Company, and were then placed in the defendant's warehouse, where they remained until August 2, 1921. The defendant company then shipped them to Birmingham, Ala., where it sold them for freight charges, etc.; the net *521 proceeds of the sale, in the sum of $180.86, being tendered to the appellants, and being accepted by them without prejudice to their claim for the full measure of damages demanded.
The plaintiffs allege, among other things, that the defendant's course in disposing of the goods was unlawful, and was followed in the face of written requests by the shippers (accompanied in at least one instance by a copy of the bill of lading), for return of the goods. They base their cause of action upon the theory of conversion.
By paragraph 6 of the amended answer the defendant alleges that its sale of the goods for payment of freight charges, etc., was unlawful.
By paragraph 7 of the amended answer alleges that the goods were shipped under a bill of lading containing the following provision which had been duly filed with and approved by the Interstate Commerce Commission:
"Except where the loss, damage, or injury complained of is due to the delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after the delivery of the property, or, in case of export traffic, within nine months after delivery at port of export, or, in case of failure to make delivery, then within six months (or nine months in case of export traffic) after a reasonable time for delivery has elapsed."
Paragraph 8 of the amended answer is as follows:
"(8) That, as this defendant is informed and believes, the plaintiffs herein failed to file any claim in writing for loss, damage, or delay to said shipment of goods within six months after the delivery of the property or within six months after a reasonable time for delivery had elapsed, and this defendant pleads the said condition and provision in said bill of lading as a complete bar and defense to plaintiffs' alleged cause of action herein." *522
The Court overruled plaintiffs' motion to strike out paragraphs 7 and 8 of the amended answer; such motion being based upon the grounds that the allegations contained in the said paragraphs were irrelevant and not a defense to plaintiffs' cause of action.
The case was tried before his Honor, Judge Bonham, and a jury, at the November, 1924, term of the Court of Common Pleas for Chester County. At the trial of the case counsel for both parties agreed:
"That the shipment of goods mentioned in the complaint was made under a bill of lading containing the limitations as to liability as alleged in Section 7 of the answer as amended, and that the initial carrier had filed with the Interstate Commerce Commission its tariff containing such limitation as to notice of claims."
At the close of all the testimony, defendant's counsel made a motion for a directed verdict, which motion was granted upon the grounds, in substance, that the shippers had failed to comply with the provisions of the contract of shipment requiring that a claim for loss be filed in writing within the time required by the terms of the contract.
The plaintiffs appeal and impute error to the trial Judge:
(1) Error in holding, "under the various forms in which the question was presented, that the making of a claim in writing was a condition precedent to appellants' right of recovery"; (2) error in holding that the shippers had not complied with the provisions of the contract of shipment requiring the filing of a written claim for loss; (3) error in not submitting the question of conversion to the jury; and (4) error in refusing to direct a verdict for the plaintiffs. (The executions will be reported.)
The principal questions presented by this appeal are (1) whether the filing of a claim within the time and in the manner set forth by the bill of lading was a condition precedent to recovery; and (2), if so, whether claim was so filed. *523
Under the undisputed facts of the case, we look, in the determination of these questions, to the decisions of the Federal Courts for guidance.
In Chicago Northwestern R. Co. v. C.C. WhitnackProduce Co.,
"It is established doctrine that the rights and liabilities in respect of damage to goods moving in interstate commerce under through bills of lading depend upon Acts of Congress, agreements between the parties and common-law principles accepted and enforced in the Federal Courts. New YorkCentral Hudson River R. Co. v. Beaham,
See, also, Southern Express Co. v. Byers,
Federal decisions, and generally state decisions, hold that a provision or limitation of liability such as is included in the bill of lading involved in this case is reasonable, and the United States Supreme Court, has held that such a provision cannot be waived by the carrier, and that state laws or rules of state procedure or practice cannot create, in effect, an evasion of same.
Davis v. Henderson,
"There is no claim that the rule requiring written notice was void. The contention is that the rule was waived. It could not be. The transportation service to be performed was that of common carrier under published tariffs. The rule was a part of the tariff. Georgia, Florida Alabama *524 R.C. v. Blish Milling Co.,
American Ry. Exp. Co. v. Levee,
"Coming to the merits, the limitation of liability was valid, whatever may be the law of the State in cases within its control. Adams Express Co. v. Croninger,
The Court below, in directing a verdict for the respondent, rested its judgment largely upon the case of Georgia, Florida Alabama Railway Company v. Blish Milling Co., *525
"We will make claim against the railroad for the entire contents of the car at invoice price. Must refuse shipment as we cannot handle it."
The milling company then brought an action in trover against the carrier and obtained a verdict in the State Court for $1,084.50.
The railroad company based its defense upon a limitation in the bill of lading with respect to the filing of claims for loss or damage within four months, contending that the shipper had failed to file such claim. The Court of Appeals held that the filing of a claim was unnecessary. On appeal, the Supreme Court of the United States, in passing upon that point, said:
"We are dealing with a clause in a bill of lading issued by the initial carrier. The statute casts upon the initial carrier responsibility with respect to the entire transportation. The aim was to establish unity of responsibility (AtlanticCoast Line v. Riverside Mills,
"In this view, it necessarily follows that the effect of the stipulation could not be escaped by the mere form of the action. The action is in trover, but, as the State Court said, "If we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier.'
Under the decisions cited, the appellants' contention that the filing of a claim was not required is clearly without merit. The fact that the suit was brought as for conversion does not change the essential nature of the claim, which is one for damages. Refusal of the consignee to accept the goods constituted "failure of delivery."American Railway Express Co. v. The Fashion Shop,
Having reached this conclusion, it remains to inquire whether claim was filed as required by the bill of lading.
The appellants allege that on August 5, 1920, the following letter with respect to this shipment was sent to the respondent, at Chester, S.C.:
"On March 5, the Fall River Bleachery, Fall River, Mass., shipped for our account one case of cotton piece goods, No. 16750, consigned to Ernest L. Barton, Chester, S.C. routing same by way of O.D. Around that time the O.D. discontinued and it was delivered to destination via all rail. *528
"We understand that the consignee has refused to accept delivery of this case. Will you, therefore, kindly reship same to ourselves in New York. We attach hereto a copy of the original bill of lading covering the shipment."
They contend that, if the filing of a claim was necessary, this letter was a sufficient claim under the contract of shipment. It is true, as stated in the Blishcase, supra, that "the making of a claim within the meaning of the stipulation" is for the purpose of giving reasonable notice to the carrier; still we do not think that the letter was a compliance with the stipulation. While the Court held in the same case that the filing of a claim "does not require documents in a particular form," it is clear that the letter is nothing more than a direction for reshipment of the goods. It lacks the essential elements of a claim, as it contains nothing which would apprise the carrier that the shipper intended to make claim, or to show the character or amount of any claim that may have been contemplated.
It follows, therefore, that, as no claim was filed in accordance with the provisions of the bill of lading, the trial Judge committed no error in directing a verdict for the respondent. This conclusion disposes of all grounds of error imputed by the appellants.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES WATTS and BLEASE concur.
Dissenting Opinion
I think that, when the goods were refused by the consignee, and the carrier was directed to return them to the shippers, the original status of the parties under the bill of lading was terminated, and a new status created, imposing upon the carrier the obligation to return the goods, a status unaffected by the time limitation in the contract of carriage which had been terminated, and that for the unaccountable mishandling of the goods, amounting to a conversion, a tort, the carrier should respond in damages for the value of the goods, regardless of the time *529
limitation. 10 C.J., 335; 31 L.R.A. (N.S.), 1178, note;Savage Factories v. Canadian Northern R. Co.,