Burns v. CHICAGO, M., ST. P. & PR CO.

• Decision Date: 12 November 1951
• Docket Number: No. 14351.,14351.
• Citation: 192 F.2d 472
• Parties: BURNS et al. v. CHICAGO, M., ST. P. & PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

192 F.2d 472 (1951)

BURNS et al. v. CHICAGO, M., ST. P. & PAC. R. CO.

No. 14351.

United States Court of Appeals Eighth Circuit.

November 12, 1951.

Jack B. Robertson, Kansas City, Mo. (Lyman Field, Kansas City, Mo., on the brief), for appellants.

W. M. Symon, Jr., Kansas City, Mo. (R. L. Hecker, Kansas City, Mo., and Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge and WOODROUGH and COLLET, Circuit Judges.

WOODROUGH, Circuit Judge.

The plaintiffs in this action made a shipment of 64 head of steers over defendant's railroad on October 4, 1947, from Two Dot, Montana, to Clearing Yards, Illinois. The steers did not arrive at destination until October 12, 1947. On November 4, 1947, plaintiffs filed a claim numbered 107-84 with defendant through their agent, the Chicago Live Stock Exchange, claiming loss and damage to the live stock caused by defendant's negligence in the "total amount claimed" of $3,128.97. The "Nature of the Claim" was stated as "Loss account delayed, rough, negligent and improper handling in transit" and under the heading "Detailed statement showing how amount claimed is determined" there appeared an item "To value: 2 good average steers, $627.44", "1 steer short at destination, 1 steer crippled". The other items of the claim were for Market Loss, Excessive Shrinkage and Extra Feed at Clearing, Illinois.

On December 1, 1947, defendant replied to the claim by letter to the Chicago Live Stock Exchange as follows:

"December 1, 1947. XXXXXX-XX "The Chicago Live Stock Exchange U. S. Yards Chicago 9, Illinois Att: Mr. H. R. Park

"Gentlemen:

"Your claim 107-84 presented in behalf of Mr. Robert C. Burns.

"From investigation conducted, we have not been able to conclude that transportation handling is answerable for extra feeding expense at Clearing Yards or a market decline loss which item, incidentally is not supported with detailed account sales.

"Shipment was handled under available service, the `range' or one feed schedule not being in force and our Agent at Two Dot is emphatic that he is not to blame for shipper's choice in letting stock go forward when it did, rather than holding cattle for faster service going into effect Oct. 8th.

"Shortage of one animal was occasioned by it being held at Aberdeen. This steer because of wildness, became unmanageable and was left behind, we selling it later for $222.00. On this animal and on the cripple noted at time of unloading of stock at Clearing, we can make the usual settlement, the cripple at destination being sold for $15.00.

"This would make the amount due on the claim something like $450.00 for which voucher can be prepared immediately, the balance of the loss being respectfully disallowed.

"Yours truly Freight Claim Agent "HWK: mj "Dec. 17, 1947."

On December 23, 1947, plaintiffs' agent, the Chicago Livestock Exchange, replied by letter to the railroad as follows:

"Mr. G. W. Loderhose, F.C.A C. M. St. P. & P. R.R. Co. Chicago, Ill.

"Dear Sir:

"This will acknowledge receipt of your favor of December 1st in connection with your claim XXXXXX-XX our claim 107-84 in favor of Mr. Robert C. Burns of Kansas City, Mo.

"It is greatly to be regretted that you have seen fit to decline this claim that seems so clearly meritorious, and upon which fairly a substantial amount should be paid.

"Mr. Burns has very properly decided to place the claim in suit, and has engaged the law firm of Messrs. Mosman, Rogers, Bell & Field, 904 Bryant Building, Kansas City 6, Mo.

"We would therefore greatly appreciate your kindness in forwarding the papers submitted to you in support of this claim, including the original affidavit and the original live stock contract to Mr. Lyman Field, c/o the law firm at the address shown.

"If you will also kindly close your files, so far as this department is concerned, and handle the matter if you please with Mr. Field, greatly obliging

"Yours very truly."

On April 5, 1948, plaintiffs' attorney wrote the defendant as follows:

"Mr. G. W. Loderhose, F. C. A Chicago, Milwaukee, St. Paul & Pacific Rd. Co 2423 Southport Avenue Chicago 14, Illinois.

"Dear Sir:

"The undersigned firm of attorneys has been employed by Mr. Robert C. Burns, Kansas City, Missouri, to handle his claim against your railroad in the amount of $3,128.97.

"We have been instructed to institute suit but before doing so, we would be pleased to discuss this matter with a representative of your railroad in an attempt to avoid needless litigation.

"Will you please let me hear from you at your earliest convenience as to whether or not you desire to discuss this matter further.

"Very truly yours Mosman, Rogers, Bell & Field By: "

On August 6, 1948, the railroad sent the following letter to the attorneys for the plaintiffs:

"G. W. Loderhose Freight Claim Agent M. B. Mortensen Ass't Freight Claim Agent Mosman, Rogers, Bell and Field 904 Bryant Bldg. Kansas City 6, Mo. Att: Mr. Jos. J. Kelly, Jr.

"Gentlemen:

"Our Traveling Agent, Mr. Ducret called on you April 27, 1948, regarding claim of Robert C. Burns, involving shipment livestock billed from Two Dot, Montana, last October. According to his report, we understand you would secure further information and proof from your client but to date, have received nothing further.

"As our investigation indicates no carrier liability and in order to protect our company by provisions in the livestock contract, we are obliged to advise that claim is respectfully disallowed. We might further add that claim on this shipment was previously presented with our company by the Chicago Live Stock Exchange and also disallowed to that Exchange Dec. 1, 1947.

"Yours truly, G. W. Loderhose, Freight Claim Agent." "WJN ch

On March 31, 1950, the plaintiffs commenced this action against the railroad in the Circuit Court of Jackson County, Missouri, for recovery of damages for negligent handling of the 62 steers and loss of two of them. Thereafter removal was had to the federal court which had jurisdiction on account of diversity of citizenship and amount involved.

Following the removal, the defendant asserted as a defense in its answer to the plaintiffs' complaint that defendant had disallowed plaintiffs' claim in writing on the first day of December, 1947, and that more than two years and one day had elapsed from said disallowance, to-wit, two years and four months, until the commencement of this action and that under the provisions of Title 49 U.S.C.A. § 20(11), and the uniform bill of lading issued thereunder pursuant to which the shipment was made, defendant was not liable to plaintiffs and their said claim could not be paid.

Thereafter, as a result of pre-trial conference and discovery proceedings all the writings of the parties relative to the claim for damages were produced and identified as exhibits and a hearing was had on defendant's motion for summary judgment in its favor. The court found on consideration of all the evidence that more than two years and one day had passed after the railroad disallowed the plaintiffs' claim in writing on December 1, 1947, before the plaintiffs commenced their action on March 31, 1950, and that the period of limitation contained in the Uniform Live Stock Contract under which the steers were shipped had expired before the action was commenced. It also held that the running of the limitation period was not tolled by negotiations for settlement shown to have been carried on after the railroad's letter of December 1, 1947. It concluded that no issue of fact remained for trial and sustained the defendant's motion for summary judgment. It accompanied its ruling with an opinion in writing, D.C., 100 F. Supp. 405. By the terms of the judgment entered in accord with the ruling, the action of the plaintiffs was dismissed at their costs and they appeal.

They do not question that their action was governed as to the time when it should have been brought by 49 U.S.C.A. § 20(11) which so far as pertinent reads, "Provided further, That it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulation, or otherwise a shorter period for the filing of claims than nine months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice: * * *", and by the terms of section 2 (c) of the Uniform Live Stock Contract under which the shipment was made and which are based on the above statute and so far as pertinent read: "As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after 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 nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is...