Fay v. Chi., R. I. & P. Ry. Co.

• Decision Date: 01 July 1919
• Docket Number: No. 31041.,31041.
• Citation: 186 Iowa 573,173 N.W. 69
• Parties: FAY v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

186 Iowa 573

173 N.W. 69

FAY

v.CHICAGO, R. I. & P. RY. CO.

No. 31041.

Supreme Court of Iowa.

July 1, 1919.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action for damages consequent on delay in shipping corn by plaintiff from Oxford, Iowa City, and Tiffin to Chicago, Ill., over the defendant's line of railway resulted in the verdict against the defendant and judgment thereon. Both parties appeal; defendant's appeal being first perfected. Affirmed on plaintiff's appeal, and reversed on defendant's appeal.F. W. Sargent, of Des Moines, Frank Messer and Clearman & Olson, all of Iowa City, and J. H. Johnson, of Des Moines, for appellant.

Ball & Ball, of Iowa City, and F. A. Cooper, of Davenport, for appellee.

LADD, C. J.

The plaintiff was engaged in the business of buying and shipping corn to Chicago, Ill., over the defendant's line of railway from Tiffin, Oxford, and Iowa City and having it shelled en route at Davenport. Ten carloads were shipped during August and September. The dates of delivery (in 1912) of the corn to defendant, by it to the Davenport Elevator Company to be shelled, the return by it to defendant, and of its arrival in Chicago are as follows:

+-----------------------------------------------------------------------------+
                ¦Car   ¦Delivered to ¦Reached   ¦Elevator       ¦Elevator Co.     ¦Arrived in ¦
                ¦No.   ¦Defendant.   ¦Davenport.¦Company        ¦Finished         ¦Chicago.   ¦
                ¦      ¦             ¦          ¦Notified.      ¦Shelling.        ¦           ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦64206 ¦Aug. 20      ¦Aug. 24   ¦Aug. 26        ¦Sept. 16         ¦Sept. 25   ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦120665¦Sept. 5      ¦Sept. 5   ¦Sept. 5        ¦Oct. 4           ¦Oct. 7     ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦36588 ¦Aug. 31      ¦Sept. 4   ¦Sept. 4        ¦Sept. 27         ¦Oct. 2     ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦11844 ¦Aug. 30      ¦Sept. 3   ¦Sept. 3        ¦Sept. 19         ¦Sept. 22   ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦202077¦Sept. 3      ¦Sept. 7   ¦Sept. 7        ¦Oct. 2           ¦Oct. 4     ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦61036 ¦Sept. 4      ¦Sept. 7   ¦Sept. 7        ¦Oct. 2           ¦Oct. 7     ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦201141¦Sept. 9      ¦Sept. 23  ¦Sept. 23       ¦Oct. 17          ¦Oct. 21    ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦122478¦Sept. 11     ¦Sept. 13  ¦Sept. 13       ¦Sept. 13         ¦Oct. 19    ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦103990¦Sept. 13     ¦Sept. 21  ¦Sept. 21       ¦Oct. 19          ¦Oct. 22    ¦
                +------+-------------+----------+---------------+-----------------+-----------¦
                ¦2480  ¦Aug. 30      ¦Sept. 20  ¦Sept. 20       ¦Oct. 15          ¦Oct. 15    ¦
                +-----------------------------------------------------------------------------+
                

[1][2] The parties agreed that the ordinary or usual time for transporting this corn from the various stations to Chicago was at that time five days, and, when billed “Stop to shell at Davenport,” seven days when there was no delay in shelling the corn. It was further agreed that all claims for damages consequent on delay were filed within four months after the several cars arrived at their destination, except cars Nos. 11844, 202077, and 61036, and that claims on these three cars were not filed in writing with the defendent until September 21, 1913. All of the bills of lading were of standard form, approved by the Interstate Commerce Commission containing the clause:

“That claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after reasonable time for delivery has elapsed.”

The plaintiff appealed from the order of the court rejecting the claims for damage because of the delay of the three cars last mentioned,contending, as was pleaded, that the defendant had waived the limitation above set out and relies on Hudson & Co. v. N. R Ry. Co., 92 Iowa, 23, 60 N. W. 608, 54 Am. St. Rep. 550, and other like decisions. Since the enactment of the Carmack Amendment by Congress (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379, as amended by Act Cong. June 29, 1906, c. 3591, § 7, pars, 11, 12, 34 Stat. 595 [[[U. S. Comp. St. §§ 8604a, 8604aa]) all questions relating to a common carrier, liability for loss or damage to interstate shipments, are to be determined thereunder, and by the rules declared by the federal court; this legislation having superseded all regulations and policies of a particular state upon the subject. Mo., Kan. & Tex. R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690. The decisions relied upon were rendered prior to that time, and for this reason are not controlling. The design of that amendment was to avoid all possibility of discrimination by the carrier in dealing with shippers. That to permit waiver would open the door to preference seems self-evident. In Phillips v. Grand Trunk Co., 236 U. S. 662, 35 Sup. Ct. 444, 59 L. Ed. 774, the point considered was whether a carrier might waive a statute of limitations relative to the filing of claims with the Interstate Commerce Commission, and with reference thereto the court said:

“The obligation of the carrier to adhere to the legal rate, to refund only what is permitted by law, and to treat all shippers alike would have made it illegal for the carriers, either by silence or by express waiver, to preserve to the Phillips Company a right of action which the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the commission and the varying periods of limitation of the different states, where a suit was brought in a court of competent jurisdiction, or to permit a railroad company to plead the statute of limitations as against some and to waive it as against others, would be to prefer some and discriminate against others in violation of the terms of the Commerce Act, which forbids all devices by which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate, not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defenses open to the carrier. The railroad company therefore was bound to claim the benefit of the statute here,” etc.

There a statutory limitation was involved, while here it is one by contract, but neither may be avoided under the Interstate Commerce Act by the “giving of” preferences by means of consent judgments or the waiver of defenses open to the carriers. The precise point was covered in Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, where the claim was based on the misdelivery of and injury to flour shipped, and the contention was that the limitation clause was inapplicable, and that the carrier, in making misdelivery, converted the flour, and thus abandoned the contract. The court, after deciding that this clause might not be obviated by the mere form of the action, observed with reference to abandoning the contract that--

“The parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed.”

See, also, Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501;Olivit Bros....