Herrin Transp. Co. v. Southeastern Elec. Co.

• Decision Date: 13 February 1958
• Docket Number: No. 13182,13182
• Citation: 310 S.W.2d 343
• Parties: HERRIN TRANSPORTATION COMPANY, Appellant, v. SOUTHEASTERN ELECTRIC CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 343

310 S.W.2d 343

HERRIN TRANSPORTATION COMPANY, Appellant, v. SOUTHEASTERN ELECTRIC CO. et al., Appellees.

No. 13182.

Court of Civil Appeals of Texas, Houston.

Feb. 13, 1958.

Phinney & Hallman, Carl L. Phinney, Leroy Hallman, Ralph W. Pulley, Jr., Dallas, for appellant.

Baker & Branch, Roland A. Baker, Houston, for appellees.

WOODRUFF, Justice.

Southeastern Electric Co., appellee, joined and acting through its agent, Noland Company, both being private corporations, sued Herrin Transportation Company, appellant, to recover the sum of $767.31 as the reasonable market value of one crate of electric switches. The Southeastern Electric Co., acting through its representative, on February 4, 1954, delivered to appellant, Herrin Transportation Company, the crate of electric switches along with two fiber boxes of iron and steel hardware for shipment and transportation from Houston, Texas, to appellee at Beaufort, South Carolina, for which appellant issued its bill of lading.

Herrin Transportation Company is a common carrier of general commodities operating over regular routes in Texas, Louisiana, Arkansas, and Memphis, Tennessee, and also transports freight beyond its own lines by agreement with other motor carriers. The entire shipment was misplaced in transit, but the two fiber boxes described in the bill of lading contract as 'iron and steel hardware' were located and on May 28, 1954, appellant delivered the two boxes to B & M Express at Memphis, Tennessee. These two boxes of hardware were delivered to appellee ten days later at Beaufort, South Carolina, on June 7, 1954. The crate of electric switches, however, was never delivered.

Neither appellee nor its authorized representatives filed a claim under the bill of lading for the lost property until November 22, 1954, which was nine months and eighteen days after the date of the bill of lading. Appellant denied the claim on the ground that appellee failed to file it within the time provided under Sec. 2(b) of the Bill of Lading contract. Appellee thereafter instituted this suit and upon a trial before the court without a jury judgment was rendered on April 29, 1957, awarding appellee a recovery against appellant in the sum of $767.31 with interest at the rate of 6% per annum from December 1, 1954, $100.00 attorney's fees, and costs of court. From this judgment appellant has duly perfected its appeal to this Court.

Section 2(b) of the Bill of Lading contract under which this shipment was made read as follows:

'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 (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed, and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. * * *'

In the trial court it was agreed and stipulated between counsel that only two questions were in dispute. They were as follows:

'A. Question of Law--It being agreed by the parties that the entire shipment was covered by one bill of lading contract and that part of the shipment was actually delivered and part undelivered, would the nine months limitation period contained in Section 2(b) of the bill of lading run from the date of the bill of lading plus a reasonable time for delivery or from the date of delivery of the partial shipment?

'B. Question of fact--At the time in question, would 18 days be a reasonable time for the delivery of a shipment from Houston, Texas to Beaufort, South Carolina by motor carrier?'

Stipulations regarding the facts were entered into between counsel in the trial court which would entitled appellee to a recovery provided, however, that 18 days was a reasonable time for delivery of the shipment by motor carrier at the time in question between Houston, Texas, and Beaufort, South Carolina.

Upon request of the appellant, the trial court filed its Findings of Fact and Conclusions of Law. The first seven Findings of Fact appear to this Court to be evidentiary and, therefore, will not be set forth. Finding of Fact No. 8 reads as follows:

'8. Considering the circumstances of the particular case and the time as was necessarily convenient to transport and make delivery of the shipment in the ordinary course of business, in the light of the circumstances and conditions surrounding the transaction, this Court finds that 18 days would be a reasonable time for the delivery of a shipment from Houston, Texas, to Beaufort, South Carolina, by motor carrier at the time in question.'

The following Conclusions of Law were also filed:

'1. Section 2(b) of the contract bill of lading provides for a nine months period of limitations within which a written claim must be filed as a condition precedent to recovery, the limitation period beginning to run from the time of delivery in the case of loss, damage, injury, or delay. The contract further provides in the alternative for the said limitation period to commence running from the date of shipment plus a reasonable time for delivery, in the case of failure to make delivery. Since the bill of lading and the shipment were unitary, the nine months period should commence to run from June 7, 1954, the date of the delivery of the partial shipment to the consignee.

'2. The contract bill of lading provides that 'the carrier or party in possession of any of the property herein described shall be liable as at common law for loss thereof or damage, thereto, except as hereinafter provided.' In view of the stipulation by the defendant and the exceptions contained in Section 1(a) are not relied upon, and in view of the further stipulation establishing all other facts necessary to the Plaintiffs' recovery, this Court finds that the Plaintiffs herein should recover of the Defendant as a matter of law, since under the construction of the contract provisions Section 2(b) as contained in subdivision 1 of these Conclusions of Law, the written claim was timely filed.

'3. On the alternative construction of Section 2(b) it becomes necessary to inquire into the reasonable time for delivery between Houston, Texas, and Beaufort, South Carolina, at the time in question.

'4. 18 days was a reasonable time for such delivery.'

By Points 1 and 2 appellant assigns as error the action of the trial court in its Conclusion of Law No. 1 that under Section 2(b) of the bill of lading the period for computing the time within which to file a written claim as a condition precedent to convey began on June 7, 1954, the date of the delivery of the partial shipment, and in holding therefore that the written claim in this case was timely filed.

In passing, it should be mentioned that it is now well established that a common carrier within certain limitations may incorporate as a part of its contract of carriage with its shippers a provision that notice of claim for loss or damage to goods in transit shall be given within specified times and that such notice shall be a condition precedent to the right to enforce the carrier's liability. 9 Amer.Jur., p. 914; 13 C.J.S. Carriers Sec. 237, p. 469.

That part of Section 2(b) of the bill of lading contract which is material here reads:

'As a condition precedent to recovery, claims must be filed in writing with the receiving * * * carrier, * * * or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property * * * or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed, * * *.'

Appellant asserts that under the terms of the bill of lading the time for the filing of any claim for the lost crate of electric switches, which was never delivered, was to be determined by that portion of Section 2(b) of the bill of lading which provided that 'in case of failure to make delivery, then' the claim in writing must be filed 'within nine months after a reasonable time for delivery has elapsed.'

Appellee takes the position that the crate of electric switches was a part and parcel of the unit of three boxes, including the two fiber boxes of iron and steel hardware, which was shipped under the terms of the one bill of lading and therefore, by reason of the delivery of the two fiber boxes of iron and steel hardware minus the crate of electric switches on June 7, 1954, the time for filing its claim was controlled by the provisions of Section 2(b) of the bill of lading, which provided that a claim in writing must be filed with the carrier 'on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property * * *.'

Conceding somewhat that there is a lack of analogy, appellee in support of its position has cited several cases where the carrier has prevailed upon being sued by the shipper on the ground that no claim had been timely filed. For the most part, the courts in those cases have not been called upon to consider whether the time specified in the various bills of lading for the filing of claims should start to run from the date of delivery of a part of the shipment or after a reasonable time for delivery had elapsed because the allotted time after both dates had long since passed in those cases before any claims were filed. Consequently, the courts gave scant, if any, consideration to that issue and almost invariably pointed out that the time specified had long since expired after the partial delivery which, of course, ordinarily affords the longest possible time. United States v. Chicago, R. I. & P. R. Co., 5 Cir., 220...