Cudahy Packing Company v. Bixby

• Decision Date: 20 May 1918
• Citation: 205 S.W. 865,199 Mo.App. 589
• Parties: THE CUDAHY PACKING COMPANY, Respondent, v. WILLIAM K. BIXBY, FREDERICK A. DELANO and EDWARD B. PRYOR, Receivers of the WABASH RAILWAY COMPANY, Appellants
• Court: Kansas Court of Appeals

205 S.W. 865

199 Mo.App. 589

THE CUDAHY PACKING COMPANY, Respondent, v. WILLIAM K. BIXBY, FREDERICK A. DELANO and EDWARD B. PRYOR, Receivers of the WABASH RAILWAY COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

May 20, 1918

Appeal from Jackson Circuit Court.--Hon. Harris Robinson, Judge.

REVERSED IN PART AND REMANDED IN PART.

New Miller, Camack & Winger for respondent.

Sebree Conrad & Wendorff for appellant.

TRIMBLE J. Ellison, P. J., concurs. Bland, J., concurs in part but dissents as to the part holding that notice to the Freight Claims Agent did not constitute substantial compliance.

OPINION

TRIMBLE, J.

This action, under the Carmack Amendment, is in four counts to recover damages to that many carloads of fresh meat respectively shipped from plaintiff's packing plants at Kansas City and South Omaha to Pittsburg, Pa., Atlanta, Ga New Haven, Conn., and Jacksonville, Fla. The shipments were made in Cudahy Refrigerator Line cars owned and furnished by plaintiff. They were loaded, iced and sealed by plaintiff at its packing plants and delivered to defendant for transportation under what has come to be known as "uniform" bills of lading, which contained instructions to the carrier to re-ice at certain stations, adding 12 per cent salt, and to re-ice oftener if delayed.

The original petition was filed December 26, 1913, but the trial was had upon an amended petition filed September 30, 1914, with a second amended answer thereto, filed September 29, 1916.

In each of said counts the amended petition alleged that the meat of that shipment was loaded in the refrigerator car, properly iced and at the right temperature, and delivered to the carrier in good condition; that the carrier received it thus for transportation, issued its bill of lading and undertook the transportation thereof through itself and connecting carriers, but that when the meat was delivered at destination it was decayed and spoiled; wherefore judgment was prayed for the damage to that particular shipment.

We need not notice the defenses made that the damage, if any, was due to the meat's inherent tendency to spoil, or to plaintiff's carelessness in not properly cooling and icing the cars and removing the animal heat from the meat before loading it into the cars. The reply denied these defenses and the issues thus raised were fought out before the jury and settled by its verdict; and no controversy now exists as to them.

The second amended answer set up as a further defense, the failure to comply with the provision in the bills of lading that claims for loss, damage, or delay must be made in writing to the carrier at point of delivery or at point of origin within four months after delivery, and unless claims were so made, the defendant carrier should not be liable.

As to this defense, the reply set up a lengthy recital of facts, hereinafter referred to, by reason of which it was alleged that defendant was estopped to now defend upon the ground that plaintiff did not literally comply with the exact terms of said provision as to notice. The reply then set up certain other facts and pleaded that, by reason of all the facts so stated, plaintiff had substantially complied with the provision as to notice, and to refuse plaintiff the right to take the verdict of a jury on its right to recover on the causes of action set forth in its petition, would be to deny it the rights and privileges claimed by it under the statutes of the United States and under the findings and orders of the Interstate Commerce Commission made pursuant to said statutes.

A trial was had. The court submitted the case to the jury upon all the issues of fact raised by the pleadings, and the jury returned a verdict in plaintiff's favor upon all four counts, assessing damages on the first at $ 363.06, on the second at $ 291.81, on the third at $ 503.33, and on the fourth at $ 354.95. Defendant appealed.

The main question is whether the trial court, in ruling on the demurrers to the evidence, should have given prevailing effect to the defense of non-compliance with the clause requiring written claim for loss or damage to be presented to the carrier at point of origin or point of delivery within four months?

For reasons of convenience, we first take up the shipment covered by the second count. It reached Atlanta November 24, 1913. Upon its arrival, plaintiff orally notified the delivering carrier's agent at that place of the spoiled condition of the meat and showed it to him. The next day, November 25, 1915, plaintiff wrote the agent of the terminal carrier at Atlanta, saying--

"Beg to confirm our report to your Mr. Wood yesterday to the effect that car CLR 4836, placed at our branch yesterday afternoon, arrived showing a temperature of 55 1/2 degrees, and that in consequence of this high temperature, the fresh meats contained in this car were out of condition, as we showed your representative who examined these goods. Some of them were in extremely bad condition and will show a considerable loss, all are affected to some extent. Undoubtedly this high temperate is due to either the car having missed an icing station, or not having been properly iced in transit. We will handle these goods to the very best possible advantage and file claim through regular channels covering loss sustained. Also call your attention to the fact that this car arrived at 4 a. m. and was not placed at our warehouse until 2 o'clock in the afternoon. Think it would be well for you to investigate and explain cause of this delay in placing the car."

In addition to this letter, plaintiff, on March 23, 1914, or three months and twenty-nine days after delivery of the shipment, mailed in Chicage to defendant's Freight Claim Agent in St. Louis a formal written claim for loss thereon, minutely specifying the details involved therein. This formal written claim, even if we can say it reached the Freight Claim Agent the next day, March 25 (which would be the last day of the four months under the rule which excludes the first but includes the last day), was not made at the point of origin or at the point of delivery, but as stated, was made upon defendant's Freight Claim Agent at St. Louis; and, on this account, was clearly not a strict compliance with the requirements of the four months clause. [Equity Elevator Co. v. Union Pacific Ry. Co., 177 S.W. 773; Watson v. Union Pacific Ry. Co., 178 S.W. 871;] We will not at this time go into the plaintiff's contentions as to the efficacy of this formal claim because of the facts set up by, and proved under, the reply; but will deal with those matters in connection with the shipments in the other counts. What we here consider is whether or not plaintiff's letter to the carrier at the point of delivery, the next day after the shipment's arrival, was a substantial compliance with the contract? It will be noticed that the letter specified the particular car and said the shipment was damaged and and in bad condition because of high temperature, due either to the car having missed an icing station or not having been properly iced in transit, and that claim for loss would be filed through the regular channels. The letter also called attention to the delay from 4 a. m. to 2 p. m. in setting the car at the warehouse for unloading and suggested an investigation into the same, besides telling the carrier that its representative had been shown the goods and their condition.

The purpose of the shipping contract in requiring that a claim for loss be made is "to give the carrier a fair opportunity to investigate the merits of the alleged loss so that unjust claims may be thwarted; to give the carrier an opportunity to investigate the merits of the claim when the facts are fresh and the information is readily obtainable." [Gees Commission Co. v. Illinois Central R. Co., 193 Mo.App. 677, 680, 186 S.W. 1136.] It is "to allow the carrier an opportunity to investigate and either settle the claim or to prepare for its contest." [Cudahy Packing Co. v. Atchison, Topeka, etc., R. Co., 198 Mo.App. 520, 201 S.W. 623.] "The purpose of the stipulation is not to escape liability but to facilitate prompt investigation." [Georgia, Florida, etc., R. Co. v. Blish Milling Co., 241 U.S. 190, 196.] In the case last cited, the stipulation in the shipping contract is identical with the one here involved. In that case, the traffic manager of the delivering carrier telegraphed the shipper that the shipment was refused on account of damage. The shipper asked the nature thereof, and the manager replied that it was slightly damaged by water and rough handling. After the shipper's representative had had an opportunity to examine the condition of the shipment, the shipper sent a final telegram saying: "We will make claim against railroad for entire contents of car at invoice price." The State court held that no notice of claim was given but that the stipulation in the bill of lading was inapplicable. The Supreme Court of the United States held that the stipulation was applicable, but that the provision in the shipping contract should not be construed "as requiring a more formal notice than that which was actually sent;" that the previous communications adequately identified the shipment, "so that this final telegram taken with the others established beyond question the particular shipment to which the claim referred and was in substance the making of a claim within the meaning of the stipulation,--the object of which was to secure reasonable notice." (Italics ours). The court further said that the stipulation in the shipping contract "does not require documents in a particular form. It is addressed to a practical exigency and is to be construed in a practical way."

It is true, the letter...