J.C. Hubinger Bros. Co. v. Chicago, Burlington & Quincy Railroad Co.
| Decision Date | 20 November 1923 |
| Docket Number | 33783 |
| Citation | 195 N.W. 762,197 Iowa 374 |
| Parties | J. C. HUBINGER BROS. COMPANY, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 16, 1924.
Appeal from Lee District Court.--W. S. HAMILTON, Judge.
ACTION to recover from this defendant, as the initial carrier, for a shipment of feed from Keokuk, Iowa, to Springville, New York. Trial to a jury. At the close of all the evidence, both plaintiff and defendant moved for a directed verdict. Plaintiff's motion was overruled, and defendant's sustained. The plaintiff appeals.
Affirmed.
Bernard A. Dolan, for appellant.
Hazen I. Sawyer and Palmer Trimble, for appellee.
PRESTON C. J. STEVENS, DE GRAFF, and VERMILION, JJ., concur.
The action arises under the Interstate Commerce Law. There is no dispute in the facts.
It appears that, in September and October, 1909, the plaintiff shipped two carloads of feed, consigned to New York. Bills of lading were issued by defendant for each car, and they contain the condition that claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to deliver then within four months after a reasonable time for delivery has elapsed; and that, unless claims are so made, the carrier shall not be liable. It is conceded that no claim or notice thereof was made within four months, or until nearly two years had elapsed. The defendant alleges that, by reason of such failure, plaintiff may not recover. The defendant also pleaded, and the evidence sustains the allegation, that the feed arrived at Buffalo, New York, October 15, 1909, and was unloaded and placed by the Western Transit Company in one of its warehouses, from which it was to be delivered to the Buffalo & Susquehanna Railway, for transportation from Buffalo to Springville; that immediately the Western Transit Company notified the Buffalo & Susquehanna Company of the arrival and the destination, and requested said company to furnish cars to carry the feed to its destination, which is located on its line; that said railway company neglected to furnish cars prior to November 1, 1909; that said Western Transit Company had ceased to hold said feed as a carrier, and retained same only as a warehouseman, and was so holding it on November 1, 1909, on which date it was destroyed by fire in said company's warehouse at Buffalo, without any fault on the part of the defendant. It is further alleged that this defendant carried said feed from Keokuk, without loss or damage, to its eastern terminus, and delivered same as directed, to the Western Transit Company; that, after notice to the Buffalo & Susquehanna Company, a connecting carrier with the Western Transit Company, said Buffalo & Susquehanna Company failed to furnish cars, and the feed was destroyed by fire, as before stated; that said Western Transit Company at once notified the plaintiff of the destruction of said feed, and that, under the law governing defendant and its connecting carrier, providing that the defendant is liable for the failure to deliver said feed, defendant might recover any amount for which it might be held liable, against its connecting carrier, which was at fault for the failure to deliver said feed; that the Buffalo & Susquehanna Company was solely and alone at fault for the failure to deliver said feed, in failing to furnish cars prior to November 1, 1909; that said railway company became insolvent, May 1, 1910, and has ever since been insolvent, so that this defendant cannot recover from said company any amount for which it might be liable to plaintiff in this action; that defendant has been prevented, by the delay in bringing this action, from recovering the amount, if any, for which it might be liable; that, had plaintiff filed a suit against defendant and prosecuted it with diligence, it would have been determined in time for defendant to have recovered from the terminal carrier, the Buffalo & Susquehanna Company, if this defendant had been held liable; and that, by reason of the delay of plaintiff in filing claim and bringing this suit, after said railway company became insolvent, plaintiff is guilty of laches, and is barred from recovering against this defendant as initial carrier. These matters so set up by the defendant are established by the evidence, without dispute.
It is further shown that plaintiff filed with the defendant its claim in writing for this loss, June 28, 1911, and that it was rejected February 12, 1912. This suit was brought on January 12, 1914, more than four years after the property was destroyed. It also appears from the evidence that, within three months from the time of shipment, plaintiff was informed of the nondelivery of the feed, and plaintiff traced for it and knew of the loss within three months from the time of shipment.
For reply, the plaintiff sets up the order of the Interstate Commerce Commission of February 9, 1914, and claims that thereby the four months' limitation was suspended and waived. The order was introduced in evidence. Defendant's motion for a directed verdict embodied all the matters pleaded by it. It may be that, as to some of them, they are not well taken. If any one of the grounds is well taken, an affirmance is called for. We shall not discuss all the several propositions. We are of opinion that some of the points are well taken.
1. Appellee contends that, because plaintiff did not give notice of its claim within four months from the time the shipment should have been delivered, it is, by virtue of its bill of lading, precluded from recovery; that the carrier cannot waive notice, and to do so would constitute a discrimination which is prohibited. Appellee cites on this proposition Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190 (60 L.Ed. 948, 36 S.Ct. 541); Adams Exp. Co. v Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Emery & Co. v. Wabash R. Co., 183 Iowa 687, 166 N.W. 600; Keeney v. Chicago, B. & Q. R. Co., 183 Iowa 522, 167 N.W. 475. See, also, ...
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