Cumbie v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 28 October 1912
• Citation: 151 S.W. 237,105 Ark. 406
• Parties: CUMBIE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

151 S.W. 237

105 Ark. 406

CUMBIE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

October 28, 1912

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

STATEMENT BY THE COURT.

This was a suit by the appellants against the appellee to recover damages for loss to a shipment of peaches which appellants allege in their complaint were delivered to the appellee at Greenwood, Arkansas, for shipment to St. Joseph, Missouri and that through the negligence of appellee in carrying out its contract, (which alleged acts of negligence are specifically set out in the complaint), plaintiffs were damaged, for which the appellants pray judgment.

The complaint in the present case is, in all essential particulars except the amendment to paragraph 1, similar to that which was held sufficient in St. Louis, I. M. & S Ry. Co. v. Cumbie, 101 Ark. 172. The amendment to paragraph 1 of the complaint is as follows:

"That after said peaches were accepted for shipment by the defendant and had been loaded into said car for shipment, and without further consideration passing, the defendant issued and delivered a receipt or bill of lading therefor and delivered the same to R. C. Cumbie. That a copy thereof is hereto attached and marked Exhibits A and B. That the defendant used no other form of receipt, and would not have given plaintiff a different one, and that plaintiff paid full rates upon said shipment. That said writing contained a clause providing that in case of damage to said fruit the consignee should give notice to the delivering carrier of an intention to claim damage therefor within thirty-six hours after notice of arrival of the freight at the place of delivery. That said clause was inserted therein without the consent of plaintiff, or the owners of said peaches or of the said J. B. Paine consignee thereof. That said provision was unreasonable in this, towit: That the owners of said fruit lived at Greenwood, Ark., when said peaches were shipped and when the same arrived at St. Joseph, Mo.; that it was more than thirty-six hours before the same could be examined in the regular course of business and the damage found; that the consignee thereof was at Van Buren, Ark., at the time, and had hundreds of cars of peaches in transit to different points of destination from Denver, Col., to New York, N. Y., and was obliged to obtain the same from the delivering carriers to commission merchants who were mere selling agents, and had no authority, and who, in this case, had no knowledge of the condition of said peaches when loaded by the initial carrier, and who had no knowledge or information that the same had been damaged in transit, and had been damaged through the fault and negligence of any of the carriers, and had no means of knowing of the intention of the consignee thereof or of the owners thereof to claim damage therefor; that the consignee could not give said notice within said time for the reason that he did not know within said time that the same had been damaged; or of the real condition of the peaches when accepted for shipment or upon arrival; that the time was unreasonably short; that the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on arrival; that the defendant, the general agent for fruit shipments, C. F. Carstarphen, and its local agent at Greenwood, Ark., L. W. Rhodes, knew of the foregoing material matters; that by reason of delay in arrival of said peaches at their destination as aforesaid the market value thereof declined $ 1.00 per crate before their arrival, and plaintiff was damaged said amount by reason thereof."

A demurrer was interposed to the complaint, containing nine grounds, the sixth of which is as follows: "There is no allegation of a compliance with the terms of the written contract to any paragraph of plaintiff's complaint; that the bill of lading provided: 'Claims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee had been notified of the arrival of the freight at place of delivery. If such notice is not there given, neither this company nor any of the connecting or intermediate carriers shall be liable.'" The seventh ground raised practically the same question as the sixth ground, copied above. The court sustained the demurrer, among others, on the sixth and seventh grounds, and dismissed the complaint. Several days after the complaint had been dismissed, the appellants offered certain amendments, which the court refused to allow, and appellants had their exceptions noted to the ruling of the court in refusing to allow these amendments. They also duly expected to the ruling of the court in sustaining the demurrer and dismissing their complaint, and have duly prosecuted this appeal.

Judgment reversed, and cause remanded.

Robert A. Rowe, Rowe & Rowe and C. A. Starbird, for appellant.

1. The provision in the bill of lading for notice of claim for damages within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery is not a condition precedent to the right of the shipper to recover, but is a mere limitation upon that right which is a matter of defense, the burden of pleading and proving which is on the defendant. 1 Hutchinson on Carriers § 447, and cases cited; 14 Am. & Eng. Ann. Cases, 414; 108 S.W. 1032; 113 S.W. 6; 122 A.D. 10; 106 N.Y.S. 702.

The validity of such a provision depends in any event upon its reasonableness; and where it is prohibited, as in our State, by statutory enactment, it is void. Acts 1907, pp. 557-8 §§ 1, 2, 3 and 4; 90 Ark. 312. The reasonableness of such a provision must be determined from all the facts and circumstances of each particular case. Id.; 67 Ark. 407; 165 Ill. 78; 41 Ill.App. 608; 54 Miss. 566; 180 U.S. 49; 67 Tex. 166; 70 Tex. 611; 75 O. St. 249; 9 Am. & Eng. Ann. Cases 15; 1 Hutchinson on Carriers, § 452; Id. § 443; 58 Ark. 138; 59 F. 879; 132 F. 52. Carriers may waive such condition. 1 Hutchinson on Carriers, § 444, and authorities cited; 70 Ark 401; 69 Ark. 256, 257.

2. In an action to recover damages for deterioration in a fruit shipment caused by the negligent failure of the company to properly ice the cars, etc, a complaint which alleges amongst other things that the delivering carrier examined the fruit and knew for itself the condition of the shipment on arrival, and that the defendant carrier, its general agent for fruit shipments and its local agent at the initial point of shipment knew all of the material matters alleged, is good on demurrer, since under such conditions notice under the thirty-six hour provision would not be necessary. 63 Ark. 331; 38 S.W. 515; 8 Kan.App. 642; 56 P. 538; 89 P. 903; 68 Ark. 218; 57 S.W. 258; 68 Ark. 218; 67 Ark. 407; 60 Miss. 1017; 62 Mo.App. 1; 34 Id. 98; 23 Id. 50; 25 S.W. 142; 86 Tenn. 198, 97 Va. 248; 68 Mo. 268; 65 Mo. 629.

3. The court should have allowed the amendment after sustaining the demurrer. Kirby's Dig., § 6145.

Thos. B. Pryor, for appellee.

1. Appellants can not avoid the effect of the provision in the contract providing for notice within thirty-six hours of any claim for damages by pleading that that clause was inserted without the consent of the owners of the fruit. 50 Ark. 406.

2. The giving of the notice provided for in the contract was a condition precedent to the right of recovery, and an allegation in the complaint of a compliance therewith was essential. 90. Ark. 308; 82 Ark. 357.

3. There was no abuse of discretion in refusing plaintiffs leave to amend after the demurrer was sustained, especially where the amendment offered was in direct conflict with the former complaints filed.

OPINION

WOOD, J., (after stating the facts).

1. Conceding, without deciding, that the amendments tendered contained subject-matter germane to the cause of action set up in the original complaint, the court nevertheless did not abuse its discretion in refusing to allow these amendments to be made at the time when they were offered. Appellants did not offer to amend the complaint until several days after the cause of action had been dismissed.

The court, in sustaining the demurrer and dismissing the complaint for the reasons set forth in the sixth and seventh grounds of the demurrer thereto, held that there was no allegation of a compliance with the terms of the written contract set up in the complaint. Having so decided, the court did not err in refusing to allow an amendment which, in the court's view of the complaint, would have rendered the same inconsistent and contradictory.

The only question we now decide with reference to these amendments is that the court did not abuse its discretion in refusing to allow them at the time they were offered. As the case must be reversed for reasons hereinafter stated, if counsel are so advised, they may offer and obtain a ruling of the lower court on these amendments at the next hearing.

2. The question presented by the court's ruling on the sixth and seventh grounds of the demurrer is whether or not appellants allege in their complaint facts sufficient to show a compliance on their part with the contract of shipment, as set up in their complaint, which provides that "in case of damage to said fruit that the consignee thereof shall give notice to the delivering carrier of an intention to claim damages therefor within thirty-six hours after notice of the arrival of the freight at the place of delivery."

The appellants did not allege in their complaint that they complied with this provision of the contract by giving the written notice specified therein, but they allege that the provision requiring written notice was unreasonable, and...