Erisman v. Chi., B. & Q. R. Co.

• Decision Date: 26 June 1917
• Docket Number: No. 30945.,30945.
• Citation: 180 Iowa 759,163 N.W. 627
• Parties: ERISMAN v. CHICAGO, B. & Q. R. CO.
• Court: Iowa Supreme Court

180 Iowa 759

163 N.W. 627

ERISMAN

v.CHICAGO, B. & Q. R. CO.

No. 30945.

Supreme Court of Iowa.

June 26, 1917.

Salinger and Weaver, JJ., dissenting in part.

Appeal from District Court, Wayne County; Thos. L. Maxwell, Judge.

Action to recover damages to goods shipped by plaintiff from Osceola, Neb., to Corydon, Iowa, over the Union Pacific and the Chicago, Burlington & Quincy Railroad companies, the former being the initial carrier. The case was originally brought in justice court, and upon a trial there judgment was rendered for plaintiff in the sum of $19.25. Defendant sued out a writ of error to the district court, and was there heard on said writ, resulting in a dismissal of the writ. The case comes here on appeal from this ruling. Reversed.Palmer Trimble, of Keokuk, and Miles & Steele, of Corydon, for appellant.

PER CURIAM.

Defendant's answer in justice court consisted of a general denial and some affirmative pleas in defense, to wit, that plaintiff at no time before bringing suit made any demand on defendant for the payment of damages, and that he did not within four months after the delivery of the merchandise make any claim in writing for said damages to the defendant, and did not at any time make any such claim in writing to the Union Pacific Railroad Company, at Osceola, Neb. Plaintiff showed that the goods were in good condition when delivered to the Union Pacific Railroad Company at Osceola, and in damaged condition when he received them from defendant at Corydon, Iowa, and the amount of his damages. He also said that, at the suggestion of defendant's agent, he made out a statement of his claim and handed it to the agent. Defendant then offered the bill of lading issued by the Union Pacific Railroad Company, and also certain parts thereof, among others a condition that all claims for loss, damage, or delay to goods must be made in writing to the carrier at point of origin or at point of delivery within four months after the delivery of the property. The bill of lading was received in evidence, but the condition quoted was rejected. It then moved for judgment, and its motion was overruled, and thereupon judgment was rendered for plaintiff in the amount hitherto stated.

The writ of error challenges the correctness of these rulings, and also claims that the judgment was unwarranted because there was no proof that the goods were damaged while in the possession of the defendant.

We are agreed that the trial court was in error in denying defendant's offer of the condition contained in the bill of lading as to when claims for damages should be presented; and are further of opinion that while, perhaps, plaintiff's testimony that he made out a statement of his claim and handed it to defendant's agent at Corydon was proper, yet it was insufficient in and of itself to show the nature of the claim, which was in writing, and which was not shown to have been lost or destroyed.

[1][2][3] The condition embodied in this bill of lading was reasonable and binding on the plaintiff, although made by the initial carrier, and in order to recover he must show by competent evidence not only that he delivered the statement, but the terms of the statement itself. The latter he could not do by parol testimony. Stevens v. St. Louis Ry. Co. (Tex. Civ. App.) 178 S. W. 810; M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690;Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556;Bailey v. Ry. Co., 184 Mo. App. 457, 171 S. W. 44. The decision below must be reversed for these reasons.

There are, however, some other questions in the case which are much more troublesome and upon which we are not entirely agreed. While defendant's counsel make no claim that a terminal or connecting carrier may not be liable for loss or damage to goods while in its possession, some doubt has arisen in the minds of some of the members of the court as to whether or not there is or can be any such liability, and also as to the nature of the proof to establish such liability.

It is conceded, or at least should be, that before the enactment of what is known as the “Carmack Amendment” to the Hepburn Bill, the terminal carrier was liable, and that all that the consignee need do was to show that the goods, when delivered by him to the initial carrier, were in good condition, and that when surrendered to him by the terminal carrier were in a damaged condition, casting the burden upon the defendant of showing nonliability.

The material parts of this Carmack Amendment read as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state 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 any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose lines the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Did the so-called Carmack Amendment change either of these rules? First, then, as to the rule of liability of any save the initial carrier. That it was not the intention of Congress to change the rule as to the liability of a terminal carrier or a connecting one, and that it in fact did not do so, has already been settled by many decisions, including those of the Supreme Court of the United States, some of them announced before this appeal was taken. See, among others, the following cases: C., N. O. & T. P. Ry. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; G., F. & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948;St. Louis S. W. Ry. Co. v. Ray (Tex. Civ. App.) 127 S. W. 281;K. C. So. Ry. Co. v. Carl, 91 Ark. 97, 121 S. W. 932, 134 Am. St. Rep. 56;Bichlmeier v. R. R. Co., 159 Wis. 404, 150 N. W. 508;Eastover Co. v. R. R., 99 S. C. 470, 83 S. E. 599;St. Louis & S. F. R. R. Co. v. Mounts, 44 Okl. 359, 144 Pac. 1037; A., T. & S. F. Ry. Co. v. Boyce (Tex. Civ. App.) 171 S. W. 1095; C., R. I. & P. Ry. Co. v. Harrington, 44 Okl. 41, 143 Pac. 325;Glassman v. C., R. I. & P. Ry. Co., 166 Iowa, 254, 147 N. W. 757.

The rule is announced in the following language by the Supreme Court of the United States in Rankin's Case, supra:

“Counsel concede liability of a common carrier under the long-recognized common-law rule not only for negligence, but also as an insurer, and that, unless the Carmack Amendment * * * has changed this rule, the railway is responsible for damages not exceeding specified value. But they insist that in Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, we held this amendment restricts a carrier's liability to loss ‘caused by it.’ And, consequently, they say, the trial court erred when it charged: ‘In this case the carrier is held to the highest degree of care for the safe transportation of the animals.’ Construing the Carmack Amendment, we said, through Mr. Justice Lurton in the case cited [226 U. S.], pages 506, 507 [33 Sup. Ct. page 152, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257]: ‘The liability thus imposed is limited to “any loss, injury, or damage caused by it or a succeeding carrier to whom the property may be delivered,” and plainly implies a liability for some default in its common-law duty as a common carrier.’ Properly understood, neither this nor any other of our opinions hold that this amendment has changed the common-law doctrine theretofore approved by us in respect of a carrier's liability for loss occurring on its own line.”

Again, in the Blish Milling Co. Case, supra, that court said:

“There are only two questions presented here, and these are thus set forth in the brief of the plaintiff in error: ‘(1) That the plaintiff's exclusive remedy was against the initial carrier, the Baltimore & Ohio Southwestern Railroad Company, under the Carmack Amendment of section 20 of the Hepburn Bill (34 St. at L. 593, c. 3591, Comp. Stat. 1913, § 8592). (2) That, under the stipulation in the bill of lading providing for the filing of claims for loss or damage, the action was barred.’ The first contention is met by repeated decisions of this court. The connecting carrier is not relieved from liability by the Carmack Amendment, but the bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation, and thus fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid. ‘The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment, so far as it is valid under the act.’ Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 648, 33 Sup. Ct. 391, 57 L. Ed. 683, 686. See Adams Express Co. v. Croninger, 226 U. S. 491, 507, 508, 33 Sup. Ct. 148, 57 L. Ed. 314, 320, 321, 44 L. R. A. (N. S.) 257;Cleveland, C., C. & St. L. R. Co. v. Dettlebach, 229 U. S. 588, 591, 36 Sup. Ct. 177, 60 L. Ed. 453;Southern R. Co. v. Prescott, 240 U. S. 632, 637, 36 Sup. Ct. 469 ; Northern P. Ry. Co. v....