Hubbard Grocery Co v. Payne

• Citation: 118 S.E. 152
• Decision Date: 12 June 1923
• Docket Number: (C. C. No. 203.)
• Parties: HUBBARD GROCERY CO. v. PAYNE, Director General of Railroads.
• Court: Supreme Court of West Virginia

118 S.E. 152

HUBBARD GROCERY CO.

v.PAYNE, Director General of Railroads.

(C. C. No. 203.)

Supreme Court of Appeals of West Virginia.

June 12, 1923.

(Syllabus by the Court.)

Certified from Circuit Court, Kanawha County.

Action by Hubbard Grocery Company against John Barton Payne, Director General of Railroads. Certified on the order of the circuit court, overruling the demurrer of defendant to the declaration. Reversed.

Lively & Stambaugh, of Charleston, for plaintiff.

Conley & Johnson, of Charleston, for defendant.

LITZ, J. The plaintiff sues in assumpsit for loss of goods alleged to have been shipped from Philadelphia to Charleston, and in its declaration, without declaring specially on the bill of lading contract, alleges that the defendant, as a common carrier for reward, undertook to transport certain merchandise for the plaintiff from Philadelphia. Pa., to Charleston, W. Va., and safely deliver the same to plaintiff at the point of destination, but that by reason of careless, improper, and negligent conduct of the defendant, through its servants, said merchandise was wholly lost to the plaintiff.

The case is certified to this court on the order of the circuit court, overruling the demurrer of defendant to the declaration. The defendant assigns, as ground of the demurrer, absence of allegation that notice in writing of the loss had been given to defendant within six months after a reasonable time for delivery of the property, as provided for in section 3 of the standard and uniform interstate bill of lading.

The declaration follows the form prescribed in Hogg's Pleading and Forms for action in assumpsit against a common carrier for loss of goods, by declaring generally on contract without reference to bill of lading.

Section 3 of the standard and uniform interstate bill of lading requires:

"Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six 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 six months (or nine months in case of export traffic), after a reasonable time for delivery has elapsed; and suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed."

The necessity of alleging compliance by the plaintiff with such provision should depend upon its duty to prove this fact as a condition precedent to the right of recovery. The courts, however, do not agree on the latter question. Some require proof of such notice as part of plaintiff's case, while others regard the provision for notice merely as a basis of defense to be established by the defendant. But, by the weight of legal authority, we believe the burden is cast upon the plaintiff.

"Where the contract of shipment provides that the shipper shall give notice of claim for loss or injury within a designated time, the burden of showing compliance with this requirement, or waiver thereof, or excuse for failure to comply, rests on the plaintiff in those jurisdictions where such compliance is considered a condition precedent to the right of recovery; and it has been held that this is so, although plaintiff did not sue on a written contract, but alleged a contract in general terms and the carrier set up the contract in the answer." 10 C. J. 373.

"While the burden is on the carrier to show the reasonableness of a stipulation requiring notice of a claim for damages to be presented within a prescribed time, the weight of authority is that the burden is on the shipper to show that he has complied with such a stipulation, and this is especially true if the stipulation as to the giving of notice is made a condition precedent to the suit." 4 R. C. L. 922.

It should be understood that in determining the questions under consideration we should look, not alone to the force of the contract of shipment upon its face, but must also remember that this contract is subject to the Carmack Amendment to the Hepburn Act of Congress (II. S. Comp. St. §§ 8604a, 8604aa), which vests in the Interstate Commerce Commission exclusive jurisdiction over matters pertaining to interstate shipments, with a view of establishing fixed and uniform regulations regarding such shipments. To this end it is held:

(1) Where the carrier has failed to issue to the shipper a bill of lading the contract set out in the standard bill of lading prescribed by the Interstate Commerce Commission will be implied as the agreement between the parties. The law was intended to operate in all cases where a carrier receives goods under an agreement, oral or written, for their transportation to another state. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; W. H. Aton Piano Co. v. Chicago, etc., R. Co., 152 Wis. 156. 139 N. W. 743.

(2) The parties cannot waive the terms of the bill of lading contract, nor can the carrier by its conduct give the shipper the right to ignore these terms and hold the carrier...