Kahn v. American Railway Express Co.
| Citation | 106 S.E. 126,88 W.Va. 17 |
| Decision Date | 22 February 1921 |
| Docket Number | 4199. |
| Parties | KAHN v. AMERICAN RAILWAY EXPRESS CO. |
| Court | Supreme Court of West Virginia |
Submitted February 15, 1921.
Syllabus by the Court.
Questions pertaining to the validity, construction, and operation of an interstate commerce regulation prescribed or approved by the Interstate Commerce Commission, under the authority conferred upon it by the Carmack Amendment of the Hepburn Act (U. S Comp. St. §§ 8604a, 8604aa), passed by the Congress of the United States, are determinable exclusively by federal law.
As tested by such law, a clause in a contract of affreightment between an express company pany and a shipper, respecting an interstate shipment, and providing that, in case of the failure of the carrier to make delivery, a claim for loss damage, or injury must be made in writing to the originating or delivering carrier, within four months after a reasonable time for delivery has elapsed, as a condition precedent to right of recovery, is valid.
The limitation prescribed in such clause is applicable to a claim for the loss of a portion of a package of goods, due to abstraction and theft thereof in transit, and consequent failure to deliver it.
In the absence of conduct on the part of the carrier working hindrance, obstruction, or concealment of such loss nondiscovery thereof by the shipper within the period of the limitation does not exclude the claim from the operation of the limitation, nor extend the time thereof.
If upon the question of reasonableness of "time for delivery" under such contract, the facts are such as afford no ground for two different and intelligent opinions respecting it, the court may determine it as one of law.
Although a carrier may waive the benefit of such a limitation by express agreement or by inconsistent conduct, a waiver thereof cannot be predicated upon conduct which neither admits liability nor denies it, upon receipt of verbal notice of the loss, after expiration of the period of limitation, and later invokes protection of the limitation, upon disclosure of actuality of the loss and the time and circumstances thereof.
Error to Circuit Court, Mercer County.
Action by E. Kahn against the American Railway Express Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Russell S. Ritz, of Bluefield, for plaintiff in error.
McClaugherty & Richardson, of Bluefield, for defendant in error.
The judgment complained of on this writ of error was rendered in favor of the defendant, on a demurrer to the plaintiff's evidence, in an action of assumpsit against a common carrier engaged in interstate transportation, for the value of goods delivered to it at Bluefield, W.Va., for carriage to the city of New York and delivery there, and not delivered, but, on the contrary, lost by the carrier.
The goods in question were part of a consignment of furs, from the plaintiff to the firm of Kruskal & Kruskal of New York, invoiced at the sum of $1,422.50. The package was delivered to the consignee within three days, but it contained goods of the value of only $882.50. The balance, amounting to $540 in value, had been abstracted and stolen therefrom. The loss was not discovered, however, until about six months had elapsed from the date of the shipment. The furs were part of a lot that had been shipped to the plaintiff on consignment, with right of return of such portions thereof as should not be desired or could not be sold. Those in question were returned for credit on plaintiff's account with Kruskal & Kruskal and they were credited as received, but receipt thereof was not acknowledged. The shipment was made October 5, 1918, and settlement was not made until about April 1, 1919. In the checking up at about that date, the shortage and loss were discovered and a demand made upon the carrier for compensation for the loss, through its local manager at Bluefield, very soon afterward. The agent neither admitted nor denied the validity of the claim. He advised the claimant to ascertain all the facts relating to the matter and obtain an affidavit from the consignees. Having done so, he again applied to the agent, who denied liability, on the ground that the claim had not been asserted or made within the time stipulated in the contract of affreightment, four months after the lapse of a reasonable time for delivery. Avoidance of the effect of this limitation of right of recovery is attempted on the grounds of invalidity thereof, inapplicability thereof to the demand in question, if valid, and waiver thereof, if valid and applicable.
The clause in question, purporting to limit liability, reads as follows:
"Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier 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."
The shipment having been an interstate one, the issues as to the validity and applicability of the clause in question depend altogether upon the law as declared by the federal courts. The Carmack Amendment of the Hepburn Act (U. S. Comp. St. §§ 8604a, 8604aa) has withdrawn all such questions...
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