E.H. Emery & Co. v. Wabash Railroad Co.
| Decision Date | 06 March 1918 |
| Docket Number | 31909 |
| Parties | E. H. EMERY & COMPANY, Appellant, v. WABASH RAILROAD COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 17, 1918.
Appeal from Wapello District Court.--SENECA CORNELL, Judge.
ACTION for damages for loss and injury in certain shipments of berries. The petition was in four counts, and claimed injuries, respectively, on four carload lots. The case was tried to the court without a jury. There was a finding and judgment dismissing the petition, and the plaintiff has appealed.--Reversed.
Reversed and remanded.
Chester W. Whitmore, for appellant.
Helsell & Helsell, McNett & McNett, J. L. Minnis, N. S. Brown Blewett Lee, and W. S. Horton, for appellees.
The plaintiff was engaged, at Ottumwa, in the business of shipping and handling fruit and vegetables. Each count of its petition declares for damages to a carload shipment of strawberries. The first three shipments declared upon in the first three counts of the petition originated at Independence, Louisiana, and were shipped over the line of the Illinois Central Railroad Company, as the initial carrier, and over the line of the Wabash Railroad Company as the terminal carrier. The fourth car originated at Judsonia, Arkansas, and was shipped over the line of the Iron Mountain Railway as the initial carrier, and over the line of the Wabash as the terminal carrier. All deliveries were made at Ottumwa by the Wabash Company. As to the fourth shipment, the initial carrier is not before the court. As to the other three shipments, both the initial and the terminal carriers are impleaded. Each shipment was made in a specially equipped car. The first car was shipped on or about April 29, 1912, and is known in the record as No. 56536; the second car involved was shipped on or about April 27, 1913, and is known in the record as No. 12470; the third car was shipped on or about May 1, 1913, and is known in the record as No. 56610; the fourth car was shipped on or about May 22, 1913, and is known in the record as A. R. T. 9068. The foregoing initials refer to the American Refrigerator and Transportation Company. In the consideration of the case, it will be more convenient for us to refer to these cars as Nos. 1, 2, 3, and 4, in the order of their dates of shipment.
These shipments were all made under uniform bill of lading, standard form, approved by the Interstate Commerce Commission. It contained the following provision:
The defendant set up the foregoing provision of the bill of lading, and alleged a breach thereof as a defense to the action. The trial court sustained such defense. The correctness of this holding is the controlling question in the case upon all counts. As to the foregoing defense, the plaintiff both denies and avoids. That is to say, it contends: (1) That it did give notice in writing, which was a sufficient compliance with the requirement of the bill of lading; and (2) that the defendants waived any further or more formal compliance with such requirement.
The facts pertaining to the attempted compliance with this requirement of the bill of lading which pertain to shipments Nos. 2, 3 and 4 are practically identical; whereas those pertaining to shipment No. 1 are somewhat different. We shall, therefore, consider together the facts pertaining to the last three shipments, and will give these our first consideration.
I. Shipment No. 2 was received at Ottumwa on April 27, 1913, in bad condition. A joint inspection of the same was immediately had by Jacobs, the station agent of the railway company, and Veitch, for the plaintiff. They joined in an inspection report upon blank forms of the railway company, as follows:
"Bracing broken, crates pushed forward, 50 crates in doorway broken, contents partly out on floor, contents shows rough handling."
The same notation above quoted was endorsed by Jacobs, the railway agent, upon the freight bill of the plaintiff, and delivered to the plaintiff. On the following day, the plaintiff delivered to the agent of the delivering carrier the following notification:
The third shipment in question arrived at Ottumwa on May 1, 1913, in bad condition. A joint inspection thereon was immediately had by one Williams for the railway company, and Veitch for the plaintiff. They joined in a report upon the blank forms of the company, which included the following:
The foregoing report was also entered upon the back of the plaintiff's freight receipt by the local agent of the delivering carrier, as follows:
On the same day, the plaintiff delivered to the agent of the delivering carrier the following notice:
Shipment number four arrived at Ottumwa on May 22, 1913. The damages condition of this car was claimed to be the result of negligent refrigeration, and not of rough handling of the car. The berries were badly decayed. A joint inspection was also had of this car by representatives of both parties. They joined in a report, which contained the following: "Contents show every evidence of car being out of ice en route; contents show heavy decay." The foregoing quotation was also entered by the local agent of the delivering carrier upon the plaintiff's freight receipt. On the following day, the plaintiff delivered to the agent of the delivering carrier the following notice:
The plaintiff did not, within four months, present a claim in writing, except as shown in the foregoing. Our first question, therefore, is, Did the foregoing substantially comply with the requirement of the bill of lading that claims for damages "must be made in writing?" The question presented is controlled by the Federal law. We are not at liberty, therefore, to deem our own previous decisions as authoritative. These would, without doubt, require an affirmative holding. It will be noted that the written notices or letters delivered to the agent by the plaintiff spoke in the future tense. Two of them stated that claim would be filed "in due time." The argument for the appellee is concentrated largely upon this feature of the form of the notice, in that it indicated a purpose to file in the future, a more formal claim; and that it thereby indicated that the plaintiff itself did not deem the writing as a sufficient compliance with the requirements of the bill of lading. The plaintiff did, later, in each case, file a somewhat more formal claim, but not within four months. This argument necessarily assumes that the claim made might have been sufficient if it had spoken in the present tense. We are impressed that such distinction is more grammatical than substantial, in a legal sense. The bill of lading specified no details as to the form in which a claim should be made. It only required that it be a claim for damages, and that it be in writing. This was in writing. In the light of the joint inspection report and the notation by the agent upon plaintiff's freight receipt, the notice could hardly be construed as other than a claim for damages. We are relieved, however, from the necessity of passing upon the question as an original one. We deem the question here presented as having been clearly...
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