Joseph v. Chicago, B. & Q. R. Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 837
• Parties: JOSEPH v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Court of Appeals

157 S.W. 837

JOSEPH v. CHICAGO, B. & Q. R. CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. COMMERCE (§ 8) — EXCLUSIVE OR CONCURRENT REGULATIONS — LOSS OF GOODS — LIABILITY.

Congress, by the Interstate Commerce Acts and the amendments thereto, including the Carmack amendment, has taken complete possession of the subject of the liability of carriers by railroad on account of interstate shipments; and such legislation and the decisions of the United States Supreme Court construing it supersede all state regulations, provisions, and policies with respect to the subject, notwithstanding the proviso of the Carmack amendment, prohibiting exemptions from liability imposed by the act.

2. CARRIERS (§ 159) — INTERSTATE COMMERCE — LOSS OF GOODS — TIME FOR FILING CLAIM.

Under the Interstate Commerce Act and its amendments, as construed by the United States Supreme Court, the provision in a bill of lading on an interstate shipment that claims for loss should be made in writing, either at the point of delivery or shipment, within four months after delivery of the property, or, in case of failure to deliver, within four months after a reasonable time for delivery has elapsed, was a valid limitation upon the carrier's common-law liability; and, although a part of the goods claimed to be lost was not in the box when delivered, the delivery of the box was a delivery of the property, advising the shipper of the loss, so as to start the period within which claim for loss must be made.

Appeal from Hannibal Court of Common Pleas; Wm. T. Ragland, Judge.

Action by S. Joseph against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Mahan, Smith & Mahan, of Hannibal, and O. M. Spencer, of St. Joseph, for appellant F. W. Neeper, of Hannibal, for respondent.

ALLEN, J.

This is an action for damages accruing through the alleged loss of certain merchandise delivered by plaintiff to defendant for shipment from Hannibal, Mo., to Chelsea, Okl. The suit was instituted before a justice of the peace, where plaintiff had judgment, and in due time defendant perfected its appeal to the Hannibal court of common pleas, where the cause was tried before the court and a jury, resulting in a verdict for plaintiff in the sum of $100. The court required plaintiff to remit a portion thereof, which was done, and judgment was entered accordingly, from which defendant has appealed to this court.

Plaintiff is engaged in the mercantile business in Hannibal, Mo., and the evidence discloses that on April 2, 1909, he delivered to defendant at its freight depot at Hannibal, Mo., a box of dry goods for shipment by defendant to Chelsea, Okl., and to be there delivered to one H. Slyman, the consignee named in the bill of lading. The box in question was delivered by the defendant to the consignee at said point of destination on or about April 10, 1909. Slyman, the consignee, took the same to the home of one Lyon, with whom he was boarding, and opened it in the presence of the latter and examined the contents. There were no marks on the box indicating that it had been opened, but it was found to be only about one-fourth full. Lyon made a list of the shortage according to the invoice sent to the consignee by plaintiff, which was thus found to be $83.74, which list he at once mailed to defendant. The consignee testified that he also telephoned plaintiff at Hannibal on the day the box was received and opened. He received the box on Saturday and Monday reshipped it and its contents to plaintiff at Hannibal.

The bill of lading under which the goods were originally shipped over defendant's line of railroad contained the following clause: "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 make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable."

It appears that after the box, containing such goods as were not lost, was returned to plaintiff, the latter filed a claim for his loss of damage with another railroad over whose line the same had been returned to him from Chelsea. No notice was given to the defendant of any claim for loss or damage until August 21, 1909, more than four months after the delivery of the box to the consignee at Chelsea, Okl., and defendant insists that for this reason a demurrer to the evidence interposed by it at the close of plaintiff's case should have been sustained.

This being an interstate shipment, nothing need be said as to the rule of decision prevailing in this state with respect to the validity and enforcement of such a clause in a bill of lading. The policy of any state with respect to such limitations upon the carrier's common-law liability, whether expressed in its Constitution, by its legislative enactments, or through the decisions of its courts, is no longer a matter of any consequence, in so far as it pertains to interstate shipments. Recent decisions of the Supreme Court of the United States make it clear that Congress, through the enactment of the Interstate Commerce Act and the...