Cohen v. Southern Ry. Co.

• Decision Date: 17 December 1934
• Docket Number: No. 22428.,22428.
• Citation: 193 N.E. 480,358 Ill. 532
• Parties: COHEN v. SOUTHERN RY. CO.
• Court: Illinois Supreme Court

358 Ill. 532

193 N.E. 480

COHEN

v.SOUTHERN RY. CO.

No. 22428.

Supreme Court of Illinois.

Dec. 17, 1934.

Action by Ludwig Cohen against the Southern Railway Company. From a judgment of the Appellate Court for the First District (273 Ill. App. 116), affirming a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Third Branch Appellate Court, First District, on appeal from Municipal Court of Chicago; Francis Borrelli, Judge.

Nelson J. Wilcox, Nelson Trottman, and I. C. Belden, all of Chicago, for appellant.

Maurice L. Davis, of Chicago, for appellee.

SHAW, Justice.

Ludwig Cohen, who transacted business under the name of Maywood Tobacco Company and who will hereinafter be referred to as the plaintiff, commenced this action in the municipal court of Chicago against the Southern Railway Company (hereinafter called the defendant) for a failure to deliver eight crates of cigarettes, valued at $432. He recovered judgment in the municipal court for the full amount claimed, which was affirmed by the Appellate Court for the First District. That court granted a certificate of importance, and the cause is before us on appeal from its judgment.

On June 28, 1929, the American Tobacco Company delivered the merchandise in question to the defendant at Reidsville, N. C., consigned to its own order for delivery at Maywood, Ill., ‘notify Maywood Tobacco Co.,’ and the shipment was routed via Monon-Chicago & Northwestern Railway Company. The order bill of lading was sent through the usual commercial channels, with sight draft attached in the sum of $432, the bill of lading to be delivered to the plaintiff on payment of the draft. This payment was made at a bank in Maywood on July 9, 1929, and the bill of lading delivered to the plaintiff. In the meantime the record indicates the shipment moved forward in the usual way, arriving at Maywood via Chicago & Northwestern Railway on July 3, 1929, on which day it was unloaded in the freight house at Melrose Park, being the station which served Maywood.It was stipulated that the usual and customary time for a shipment to cover the distance involved would be five days, and the trial court found, as a matter of fact, that the reasonable time necessary, in the ordinary course of business, to transport the shipment from Reidsville would call for its arrival at Melrose Park at 9:00 a. m. on July 3. It was stipulated that it was the practice of the railroad company on arrival of shipments to send out post card notices, but there is no evidence in the record as to whether or not any notice was given. There is evidence that the cigarettes were actually received at Melrose Park, but none as to what became of them, and it is, in effect, conceded that the plaintiff has never received this merchandise.

This shipment was transported under the provisions of the bill of lading prescribed by the Interstate Commerce Commission, which, among other things, provided as follows: ‘Claims for loss, damage or injury to property must be made in writing to originating or delivering carrier or carriers issuing this bill of lading, within six months after delivery of the property, * * * or in case of failure to make delivery, then within six months * * * after a reasonable time for delivery has elapsed.’ It is conceded by both parties that this litigation must be determined upon a construction of the foregoing provision from the bill of lading, it being the contention of the defendant that the claim for loss was not made in writing within six months after a reasonable time for delivery had elapsed.

On this point the evidence and the finding of the trial court were as follows: The stipulations above mentioned as to the routine course of traffic between the two stations involved was entered into in open court. The plaintiff introduced in evidence, without objection, a copy of the letter of his attorney dated January 3, 1930, addressed to the defendant, which made formal claim for the loss in question. The plaintiff also introduced a registered mail return-receipt from the defendant showing delivery of registered letter on January 6, 1930, at its home office in Chattanooga, Tenn.; also a letter from the defendant to the plaintiff's attorney dated January 7, 1930, acknowledging receipt of the written claim of January 3, which contained the following paragraph: ‘Claim was originally filed with the Southern Railway Company by the American Tobacco Company, and inasmuch as our investigation developed irregular handling on the part of the delivering carrier, all papers were referred to Mr. W. C. Johnson, F. C. A., C. & N. W. R. R. Company, Chicago, Ill., and we were notified by Mr. Johnson under his claim No. 30-190739, that claim would be handled to a conclusion by his company. On receipt of this letter the American Tobacco Company was notified and our records closed. I am to-day writing Mr. Johnson of the C. & N. W. R. R. Company status of claim and will be pleased to write you again on receipt of his reply.’ It was further established that the contract bill of lading contained a provision limiting the carrier's liability to that of a warehouseman, only, after the expiration of the free time allowed by tariffs on file ‘after notice of the arrival of the property at destination * * * has been duly sent or given and after placement of the property for delivery at destination * * * has been made.’ The free time provided for by the tariffs was 48 hours.

The trial court found as facts, in addition to the matters above stated, that the plaintiff's claim was filed with the initial carrier on January 6, 1930, that the claim was filed in writing within six months after a reasonable time for delivery had elapsed, and that the plaintiff was entitled to recover.

It is contended by the defendant that the reasonable time for delivery expired not later than July 5, 1929; that six months from this date would be January 5, 1930, and that the claim was therefore filed on day too late. The argument in this behalf appears to be entirely founded on decisions as to that point in time when the liability of a railroad company ceases to be that of carrier and becomes that of warehouseman, only. On behalf of the plaintiff it is urged that, as between the consignee and the carrier, the 48-hour free time period allowed by the bill of lading had extended the status of the carrier, as such, for that period of time; that a reasonable time for delivery cannot be considered as having elapsed until after the status of carrier had been terminated, and that, without regard to the 48-hour free time provision, the reasonable time for delivery ought not to be considered as having elapsed until at least the end of the day following that on which the notice of arrival of the shipment would ordinarily be delivered, which in the case at bar could not be any earlier than July 6, 1929; that in any event, even if the time be assumed as July 5, six...