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

• Decision Date: 05 February 1951
• Docket Number: No. 6320.,6320.
• Citation: 100 F. Supp. 405
• Court: U.S. District Court — Western District of Missouri
• Parties: BURNS et al. v. CHICAGO, M., ST. P. & P. R. CO.

100 F. Supp. 405

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

No. 6320.

United States District Court W. D. Missouri, W. D.

February 5, 1951.

Clay C. Rogers, Lyman Field, Reed O. Gentry and Jack B. Robertson, Kansas City, Mo., for plaintiffs.

Robert L. Hecker, William M. Symon, Jr., Kansas City, Mo., for defendant.

RIDGE, District Judge.

On motion of defendant for summary judgment, premised on the ground that the freight claim loss here sued on is barred by the provisions of Section 20(11), Title 49 U.S.C.A., and by the terms of the bill of lading applicable to the shipment of certain live stock from Two Dot, Montana, to Clearing Stock Yards, Illinois, on October 4, 1947, the following undisputed facts appear of record herein. After arrival of such live stock at Clearing Stock Yards, plaintiffs, on October 17, 1947, made claim against defendant, through their duly authorized agent, Chicago Live Stock Exchange, for damages occurring thereto, in the sum of $3,128.97. After consideration of said claim, defendant, acting through its Freight Claim Agent, on December 1, 1947, sent the following letter to the Chicago Live Stock Exchange:

"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."

December 23, 1947, the Chicago Live Stock Exchange acknowledged receipt of the above letter, as follows:

"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 * * *"

The "Uniform Live Stock Contract" relating to the shipment in question contains the following provisions: "* * * suits shall be instituted against any carrier only within two years and one day from the day from which 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. Where the claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid."

In April of 1948, counsel for plaintiffs opened correspondence with defendant's Freight Claim Agent, informing defendant they had been "instructed to institute suit (on plaintiffs' claim) but before doing so, (they) would be pleased to discuss (the) matter with a representative of defendant in an attempt to avoid needless litigation." Thereafter, a conference was held between said counsel and a representative of defendant. August 6, 1948, defendant's Freight Claim Agent sent the following letter to said counsel:

"Our Traveling Agent, Mr. Ducret called on you April 27, 1948 regarding claim of Robert C. Burns involving shipment livestock billed from Two Dot, Mont., 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 was also disallowed to that Exchange Dec. 1, 1947."

Subsequent to the writing of the lastmentioned letter, and prior to December, 1949, several other conferences were held, and further correspondence passed between counsel for plaintiffs and the Freight Claim Agent of defendant, looking to a compromise of said claim. January 10, 1949, counsel for plaintiffs had a telephone conversation with defendant's Freight Claim Agent, after which the latter wired said counsel: "Re Burns claim necessary to handle law department will advise further as soon as possible." March 2, 1950, defendant's law department informed plaintiffs' counsel that in light of the fact that on December 1, 1947, it had "allowed (plaintiffs') claim in the sum of $450.00 and the balance was disallowed without any equivocation," they were of the opinion that the period of limitation having run so as to then bar plaintiffs' claim, defendant was powerless to make any settlement of said claim because of the mandate of the Interstate Commerce Act. 49 U.S.C.A. §§ 1, 3, etc. Thereafter, complaint was filed herein on March 31, 1950, seeking recovery against defendant on the above-referred-to claim.

The matter to be resolved under the foregoing state of facts is whether the limitation period within which suit could be brought on the instant freight claim began to run as of December 1, 1947, or from August 6, 1948, in light of the written notices so given and the provisions of Section 20(11), Title 49 U.S.C.A., and the above-set-forth terms of the "Uniform Live Stock Contract," controlling the shipment in question. If the earlier date governs then the claim here sued on was barred at the time of the filing of the complaint herein. If the latter, then plaintiffs may maintain this action. To avoid the consequences of the running of the limitation period herein, plaintiffs contend that the letter of December 1, 1947, stating as it does that defendant considered "the amount due on the claim something like $450.00," and that "the balance of the loss being respectfully disallowed," was not tantamount to a final declination of the claim plaintiffs made against defendant, under the above-referred-to statute and contract, so as to satisfy the requirement of notice thereof as therein provided and commence the running of said limitation period. Plaintiffs further assert that use by defendant of the term "loss" instead of the word "claim" in said letter also makes manifest that the defendant did not intend said letter to be a final declination of its claim.

The parties are in agreement that under the provisions of Section 20(11), Title 49 U.S.C.A., and the terms of the Uniform Live Stock Contract, su...