Erisman v. Chicago, Burlington & Quincy Railroad Co.
Decision Date | 26 June 1917 |
Docket Number | 30945 |
Citation | 163 N.W. 627,180 Iowa 759 |
Parties | J. ERISMAN, Appellee, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
Court | Iowa Supreme Court |
Appeal from Wayne District Court.--THOS. L. MAXWELL, Judge.
ACTION to recover damages to goods shipped by plaintiff from Osceola, Nebraska, to Corydon, Iowa, over the Union Pacific and the Chicago, Burlington & Quincy Railroads, 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 and Miles & Steele, for appellant.
K. E Sallman, for appellee.
I. 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 to the defendant for said damages, and did not at any time make any such claim in writing to the Union Pacific Railroad Company at Osceola, Nebraska. 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 of further 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.
II. 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 S.W. R. Co., (Tex.) 178 S.W. 810; Missouri, K. & T. R. Co. v. Harriman Bros., 33 S.Ct. 397, 57 L.Ed. 690; Southern Express Co. v. Caldwell, 21 Wall. 264 (22 L.Ed. 556); Bailey v. Missouri Pac. R. Co., (Mo.) 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 (34 Stat. at L. 593, Ch. 3591; Comp. Stat. 1913, Sec. 8592), the terminal carrier was liable, and that all the consignee need do was to show that the goods, when delivered by him to the initial carrier, were in good condition, and, when surrendered to him by the terminal carrier, were in a damaged condition, casting the burden upon the defendant of showing non-liability.
The material parts of this Carmack Amendment read as follows:
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: Cincinnati, N. O. & T. P. Ry. Co. v. Rankin, 36 S.Ct. 555, 60 L.Ed. 1022; Georgia, F. & A. R. Co. v. Blish Milling Co., 36 S.Ct. 541, 60 L.Ed. 948; St. Louis S.W. R. Co. of Texas v. Ray, (Tex.) 127 S.W. 281; Kansas City S. R. Co. v. Carl, (Ark.) 121 S.W. 932; Bichlmeier v. Minneapolis, St. P. & S. S. M. R. Co., (Wis.) 150 N.W. 508: Eastover M. & H. Co. v. Atlantic C. L. R. Co., (S. C.) 83 S.E. 599; St. Louis & S. F. R. Co. v. Mounts, (Okla.) 144 P. 1036; Atchison, T. & S. F. R. Co. v. Boyce, (Tex.) 171 S.W. 1094; Chicago, R. I. & P. R. Co. v. Harrington. (Okla.) 143 P. 325; Glassman v. Chicago, R. I. & P. R. 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:
Again, in the Blish Milling case, supra, that court said:
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