Delphi Frosted Foods Corp. v. Illinois Cent. R. Co.

• Decision Date: 10 April 1951
• Docket Number: No. 11193.,11193.
• Citation: 188 F.2d 343
• Parties: DELPHI FROSTED FOODS CORP. v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

188 F.2d 343 (1951)

DELPHI FROSTED FOODS CORP. v. ILLINOIS CENT. R. CO.

No. 11193.

United States Court of Appeals Sixth Circuit.

April 10, 1951.

Adrian H. Terrell, Paducah, Ky., Terrell, Schultzman & Moore and Adrian H. Terrell, all of Paducah, Ky., on brief, for appellant.

James G. Wheeler, Paducah, Ky., Wheeler & Marshall and James G. Wheeler, all of Paducah, Ky., on brief, for appellee.

Before SIMONS, ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises out of a controversy over alleged liability for damage to six cars of frozen fruit, consisting of strawberries, dewberries, blackberries, and peaches, shipped from Paducah, Kentucky, by appellant during July, 1945, over appellee's railroad and connecting carriers. Five of the cars were consigned to Jersey City and one to New Orleans. When the cars were inspected at destination cartons of berries were mashed and broken, cans which contained peaches were dented and the peaches were discolored. Some of the contents were condemned by the United States Food and Drug Administration and only a small amount of salvage was realized. Appellant brought suit for $33,192.18, the claimed value of the fruit, and $1,732.30 as expense of preparing the salvaged fruit for the market, for sales service and storage.

The case arises under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C., § 20, par. 11, 49 U.S.C.A. § 20(11), which provides that a common carrier or railroad receiving property for interstate transportation "shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad or transportation company from the liability hereby imposed * * *."

Appellee contends that as to four of the cars in question, MDT 21740, IC 54400, IC 50187, and IC 50265, appellant was barred from instituting the suit because it had not filed claims in writing within nine months after delivery of the property, in accordance with the bills of lading. Appellee also contends that as to the two remaining cars the fruit was not properly frozen, processed, nor loaded, and hence appellee was not liable. Jury trial was waived. The District Court sustained the contention as to notice and also found that the appellant had not borne the burden of proving that the fruit was in good condition when shipped.

As to the question of notice, each of the bills of lading provides in paragraph 2 (b): "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. * * *"

Appellant neither gave nor attempted to give notice to the receiving or delivering carrier as to the four cars listed. It appears, however, that certain of appellant's customers who had contracted to purchase portions of the shipment gave notice to the Erie Railroad, the delivering carrier in Jersey City, with reference to the damaged condition of the goods. Certain of these customers later sued appellant in the New York state courts for a refund of amounts paid for the fruit. It was there held that title had not passed to the customers, and appellant thereupon reimbursed all of them.

Appellant contends that the requirement of notice of claim was substantially complied with. It relies upon Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948, which held that a telegram sent by the claimant containing an adequate statement of the claim satisfied the requirement that the claim should be made in writing. In that case the claim, although informal, was made by the plaintiff in the action.

The District Court correctly concluded that the notice contemplated by the bill of lading is to be given by the claimant and not by others. Notice to the delivering carrier was sufficient; but the assertion of damage by persons who had contracted for some portion of the goods, title to which had not passed, persons who were not agents of the appellant, did not constitute such a claim as was required. The bill of lading was authorized under the Interstate Commerce Act, and has the sanctity of a Martin, 283 U.S. 209, 222, 51 S.Ct. 453, 75 L.Ed. 983. To hold that the filing of the claim is dispensed with under the circumstances of this record would be to "alter the terms of a contract, made in pursuance of the Interstate Commerce Act and having, in effect, the quality of a statute of limitation, and thus to open the door for evasions of the spirit and purpose of the act to prevent preferences and discrimination in respect of rates and service." Chesapeake & Ohio Ry. Co. v. Martin, supra, 283 U.S. at page 222, 51 S.Ct. at page 458. While the purpose of the notice is to give the carrier an opportunity to investigate the claim, Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., supra, the identity of the claimant is a material feature of any such investigation. As stated in Appalachian Electric Power Co. v. Virginian Ry. Co., 126 W. Va. 626, 29 S.E.2d 471, the bill of lading clearly contemplates that the person damaged shall file the claim. If the time limit set forth in the provision is reasonable, failure to file the claim is fatal. Southern Pacific Co. v. Stewart, 248 U.S. 446, 39 S.Ct. 139, 63 L.Ed. 350; St. Louis, Iron Mountain & Southern Ry. Co. v. Starbird, Admr., 243 U.S. 592, 37 S.Ct. 462, 61 L.Ed. 917; Gooch v. Oregon Short Line Rd. Co., 258 U.S. 22, 42 S.Ct. 192, 66 L.Ed. 443; American Ry. Express Co., Inc., v. The Fashion Shop, Inc., 56 App.D.C. 114, 10 F.2d 909; Manby v. Union Pacific R. Co., 8 Cir., 10 F.2d 327; Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir., 187 F.2d 675. As expressly stated in the opinion therein, Hopper Paper Co. v. Baltimore & Ohio R. Co., 7 Cir., 178 F.2d 179, is based upon the peculiar facts of the case. Since the claim was not filed within the nine months period, there can be no recovery for damage to the contents of cars MDT 21740, IC 54400, IC 50187, and IC 50265.

It remains to consider cars IC 52116 and IC 55485, as to which notice was given by appellant within the required time. The District Court held in effect that appellant had not sustained the burden of proving that the damage to these cars occurred because of the negligence of the railroad.

The District Court found: "The evidence introduced by defendant is not only sufficient to raise an unresolved doubt as to the validity of the inference of negligence arising from the prima facie case made by the plaintiff's proof but it is amply sufficient to persuade that non-existence of negligence in the performance of the duty to afford reasonable protective service of the kind and extent requested by the shipper is as probable as its existence. ...