Illinois Cent. R. Co. v. Jordan

• Decision Date: 19 October 1914
• Docket Number: 16602
• Citation: 66 So. 406,108 Miss. 140
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. JORDAN

66 So. 406

108 Miss. 140

ILLINOIS CENTRAL RAILROAD COMPANY v. JORDAN

No. 16602

Supreme Court of Mississippi

October 19, 1914

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by T. N. Jordan, against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mayes &amp Mayes, for appellant.

The next error of which we complain was the action of the trial court in sustaining the plaintiff's objection to paragraph 5 of the bill of lading, and in excluding the paragraph from consideration in this case. Paragraph 5 of the bill of lading, which covers the shipment in controversy reads as follows: "It is further agreed by the shipper that no claim for loss or damage to stock shall be valid against said railroad company unless it shall be made in writing, verified by affidavit, and delivered to the general freight agent of the company or the agent of the company at the station from which the stock is shipped, or the agent of the company at the point of destination, within ten days from the time said stock is removed from the cars."

The facts of the case at bar are that these oxen were unloaded on the 13th of October, 1910, and that plaintiff's damage was at once apparent to him, but that he did not reduce his claim to writing, nor verify it by affidavit, within ten days. The fact is, the plaintiff did not give the defendant any notice at all of his alleged damage until November 5th (22 days after the oxen were unloaded), when plaintiff wrote a letter to the claim agent of the G. & S. I. Railroad Company, at Gulfport, telling him of his loss.

It seems that immediately upon receipt of plaintiffs' letter, to wit, on the 8th, of November, the claim agent wrote back to plaintiff, telling him to put his claim in writing, and verify it by affidavit, as provided for by the bill of lading, and not getting a reply from plaintiff to the letter of November 8th, the claim agent again, to wit, on November 29, 1910, wrote to plaintiff, calling his attention to the previous letter of the 8th, and asking for affidavits, relating to the claim; but neither did plaintiff answer this letter. And when the plaintiff was asked, on the witness stand, whether or not he had ever made, or caused to be made, a written statement of his claim, verified by affidavit, and filed with either the I. C. or the G. & S. I. Railroad Companies, the question was objected to by plaintiff, and the objection sustained by the court.

It seems, therefore, that this plaintiff has reduced his claim to writing by sending the letter of November 5th, to the claim agent. But this plaintiff is in default in two particulars, to wit: First, he never verified his claim by affidavit; second, he did not file his claim with the carrier's agent within the specified ten days. Either one of these defaults is sufficient to forever bar the plaintiff from recovery in this case.

Our supreme court has repeatedly held that a stipulation contained in a bill of lading that no claim for loss or damage to the shipment will be valid unless verified by affidavit and filed with the carrier's agent within a specified number of days, is a reasonable rule, and can be enforced. 27 So. 879, 45 So. 867. The number of days specified for the filing of the claim must be reasonable. Just whether ten days is a reasonable time limit for requiring such filing, our court had not said one way or the other. But whether ten days is a reasonable time for requiring the filing of this claim is immaterial in this case, because, aside from this, the plaintiff has also failed to perform the other condition precedent to the right to recover, to wit, he has failed to verify his claim by affidavit, and that too, although the defendant's agent has written to the plaintiff several times, insisting that these affidavits be furnished, and refusing to entertain the claim until they are furnished.

Mize & Mize, for appellee.

This case has once been before this court on appeal from a verdict in favor of the defendant railroad company by the jury, and this court reversed it on erroneous instructions, T. N. Jordan v. I. C. R. R. Co., 102 Miss. 21, and every point was raised then that is raised now, except as to the limitation clause in the bill of lading requiring the shipper to file sworn claim, in case of injury to stock, within ten days after the unloading of the stock, which we will discuss later.

McSwain's testimony that counsel for appellant now object to, to the effect that appellee had not paid him for the oxen, was objected to before by appellee and overruled and was one of the points on which this case was reversed, the court holding that McSwine's testimony to that effect was not competent. Matters of law determined on a former appeal become the law of the case and cannot be reviewed on a second appeal. Hoodless v. Jernigan, 41 So. 194. All points of error adjudicated on writ of error and appeal become the law of the case, and are no longer open on the second appeal. Purvis v. Frink, 54 So. 862. All the points adjudicated upon appeal become the law of the case and are not open for discussion on a second appeal. Fidelity & Deposit Co. v. Aultman, 55, So. 273.

In the absence of statute, this is the rule in all jurisdictions we have been able to find, that, where questions have been once...