Illinois Cent. R. R. Co. v. Smith

• Decision Date: 03 February 1919
• Docket Number: 20514
• Citation: 80 So. 776,119 Miss. 308
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL R. R. CO. v. SMITH

80 So. 776

119 Miss. 308

ILLINOIS CENTRAL R. R. CO. v. SMITH

No. 20514

Supreme Court of Mississippi

February 3, 1919

Division B

CABRIERS. Live stock. Bill of lading. Construction. Loss. Damage.

Where a bill of lading for an interstate shipment of cattle provided that it is agreed by the shipper that no claim for loss or damage shall be valid unless it shall be made in writing within ten days, and because of the carriers' failure to properly tag the car, the cattle were unloaded in a quarantine division pen and a lesser price was obtained recovery may be had, though the notice provided for was not given, there being in such case neither "loss" nor "damage," since the bill of lading will be construed to mean that the "loss" referred to is a loss of the thing shipped, and the word "damage" means some physical impairment of the article shipped.

HON. J L. BATES, Judge.

APPEAL from the circuit court of Marshall county, HON. J. L. BATES Judge.

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

The facts of this case are fully set out in the opinion. It is only necessary to add that the bill of lading referred to in the opinion contained, among other things, the following clause:

"It is further agreed by the shipper that no claim for loss or damage to said stock shall be valid against said company unless it shall be made in writing, verified by affidavit delivered to the general freight agent or freight claim agent of the railroad company, or to the agent of the company, at the station from which the stock is shipped, or to the agent at the point of destination, within ten days from the time the said stock is removed from said cars."

Affirmed.

Wells, May & Sanders, for appellant.

It will be observed that this was an interstate shipment of cattle, one car being shipped on May 28, 1912, and another car on August 10, 1912.

The sole question presented by this appeal is as to whether or not, under the terms of the contract of affreightment, the plaintiff in this court below, was entitled to any recovery against the defendant where his contract required that notice of loss should be filed within ten days after delivery, he filed no written claim with any proper agent of the carrier as named, and required, by the contract, and whether or not he was on that account precluded from any recovery.

It appears to us that this question is settled and put at rest by the opinion of this court in the case of the I. C. R. R. Co. v. W. J. Davis & Co., 72 So. 974, the opinion of the court having been rendered on October 23, 1916.

The agreed statement of facts on the trial in the court below shows that no written notice was given by the appellee to any of the agents mentioned in the contract of shipment, within ten days, the limitation provided in the contract for giving written notice of claims for loss.

In the Davis case, cited supra, this court used the following language: "In the case of G. S. F. & A. R. R. Co. v. Blish Milling Co., 241 U.S. 190, 60 Law Ed. 948, it is held that the provision in the bill of lading requiring the claim to be filed within a stipulated time, is valid. . . . The shipment of stock in the case before us, was an interstate shipment, and of course, the rule announced by the Federal courts in such cases will be followed by the state courts. We think the stipulation in the contract in the case now before us is reasonable and valid. (Citing numerous authorities). . . . There was no waiver here, by the appellant railroad company, according to this record, of the stipulation of the ten days' notice in the contract. The appellee did not file his claim in writing with any of the proper agents of the railroad as named and required by the terms of the contract, but he claims to have originally mentioned the damage or loss to a travelling freight agent of the appellant, who had no authority to receive such notice or to deal with such matters. The appellee, according to the proof of this record, having failed to file his claim for loss and damage within the time provided by the contract, is now precluded from recovery."

As to the validity of the ten days' limitation in the contract, see the following: I. C. R. R. Co. v. Bauer, 75 So. 376; Hamilton v. Cleveland, etc., R. R. Co., 206 Ill.App. 270, N.C. & St. L. R. R. Co. v. Kamper, 78 So. 925; Olson v. Chicago, etc., R. R. Co. et al., 250 F. Rep. 372; Houston, etc., v. Houston Pckg. Co., 203 S.W. 1140; Kenney v. Chicago, Burlington, etc., R. R. Co., 167 N.W. 475; St. L. & I. Mt. v. Starbird, 243 U.S. 592; Jordan v. Chicago, etc., R. R. Co., 196 S.W. 417.

Many other decisions of federal and state courts might be cited, but in our view of the question presented by this record, the case of Illinois Central R. R. Co. v. W. J. Davis & Co., cited supra, settles the question in favor of the appellant and we respectfully submit that the judgment of the lower court should be reversed and a judgment here entered in favor of the appellant.

L. A. Smith, for appellee.

It is the contention of appellee in this case, first, that the clause recited in appellant's brief at page 3, did not require him to give any notice whatever to appellant as the plain intent of the clause is to notify the carrier of loss or damage to any of the stock in this shipment. The court's attention is called to the phraseology of this section, viz: "No claim for loss or damage to stock," that is, a claim for a tortious act which would cause loss or damage to the stock itself. Loss is, of course total, while damage is partial, and neither is claimed in this case, with reference to the stock, but the claim is for compensation from appellant for negligently causing the unlost and undamaged stock to be unloaded into a limited market, when by doing its duty, appellant would have unloaded them in the unlimited market. For instance, it does not appear, and is not contended, that any of the cattle shipped failed to reach the destination, or that any of the cattle reached its destination crippled, or shrunk, or dead, and hence there could be no loss of the cattle or damage to the cattle, but the injury complained of is rather a damage to the market accessible to appellee by narrowing his opportunity to sell because of appellant's negligence in compelling these cattle to be sold at infected cattle prices. ...