L. M. Kirkpatrick Co. v. I. C. R. Co

• Decision Date: 06 May 1940
• Docket Number: 34131
• Citation: 195 So. 692,190 Miss. 157
• Court: Mississippi Supreme Court
• Parties: L. M. KIRKPATRICK CO. v. I. C. R. Co

195 So. 692

190 Miss. 157

L. M. KIRKPATRICK CO. v. I. C. R. Co

No. 34131

Supreme Court of Mississippi

May 6, 1940

Suggestion Of Error Overruled February 10, 1941.

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Action by the L. M. Kirkpatrick Company, a partnership, against the I. C. Railroad Company to recover damages allegedly caused by unreasonable delay in the shipment of tomatoes. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Henley Jones & Woodliff, of Hazlehurst, for appellant.

The appellee's letters do not amount to a disallowance of the claims.

Where claims are resubmitted limitation would only begin to run from final disallowance.

Decker & Sons v. Director General, Minneapolis & St. Louis R. R. Co., 55 I. C. C. 453; Interstate Commerce Act, Sec. 16, Par. 3(c); Savannah Creosoting Co. v. Southern Ry. Co., 167 I. C. C. 612; Nat. Screw Mfg. Co. v. N. Y., C. & St. L. R. Co., 155 I. C. C. 209; Schimmel v. Baltimore & O. R. Co., 168 I. C. C. 191, 179 I. C. C. 135; Mayflower Mills v. Breeland, 149 So. 787-788.

When the carriers consent or acquiesce in a further consideration of claims, a resubmission of the claim amounts to a withdrawal of its former declination and, the first declination was ineffective to start the operation of the Statute of Limitations.

Issue involved in this case is not whether the Statute of Limitations can be waived, but a construction of the law pertaining to when a suit must be brought against a carrier for loss and damage and as to whether when a claim has been submitted to a carrier with its consent on more than one occasion, the limitation begins to run from the first or the last declination of the claim.

S. J. Graves & Sons Co. v. C., St. P., M. & O. Ry. Co., 177 I. C. C. 732; International Agri. Corp. v. Seaboard A. L. Ry. Co., 147 I. C. C. 699; Nat. Screw Mfg. Co. v. N. Y., C. & St. L. R. Co., 155 I. C. C. 209; Savannah Cresoting Co. v. Southern Ry. Co., 167 I. C. C. 612; Schimmel v. Baltimore & O. R. Co., 179, I. C. C. 135.

Decisions of the Interstate Commerce Commission on this subject are unchallenged and in full force and effect.

Jacob E. Decker & Sons v. Director General, 55 I. C. C. 453; International Agri. Corp. v. Seaboard A. L. Ry. Co., 147 I. C. C. 699; Nat. Screw Mfg. Co. v. N. Y., C. & St. L. R. Co., 155 I. C. C. 209; Savannah Creosoting Co. v. Southern Ry. Co., 167 I. C. C. 612; S. J. Graves & Sons Co. v. C., St. P., M. & O. Ry. Co., 177 I. C. C. 732; Schimmel v. Baltimore & O. R. Co., 179 I. C. C. 135.

Supreme Court of the United States is not committed to the theory that under no circumstances can there be a waiver of the provisions of the bill of lading.

Texas & P. Ry. Co. v. Leatherwood, 250 U.S. 478, 63 L.Ed. 1096; 13 C. J. S. 504.

E. C. Craig and V. W. Foster, both of Chicago, Ill., Clinton H. McKay, Lucius E. Burch, Jr., and Frank F. Roberson, all of Memphis, Tenn., and M. S. McNeil and Lena Zama, both of Hazlehurst, for appellee.

The claims are barred because not brought within two years and one day of the written notice of disallowance.

49 U.S.C. A., Sec. 20, Par. 11, Note 301; I. C. R. Co. v. Rogers, 116 Miss. 99, 76 So. 686; Am. Ry. Express Co. v. Schideler, 88 Ind.App. 647, 165 N.E. 336.

In view of the purpose of the commerce act to absolutely uproot and destroy discriminations in interstate commerce, no matter how conceived or by what plan, scheme, or device they may be sought to be accomplished, it is beyond the power of the carrier to waive a valid provision of the contract constituting a defense.

Phillips v. Grand Trunk Ry., 236 U.S. 662, 667, 35 S.Ct. 444, 59 L.Ed. 774; Banaka v. Mo. Pac. Ry. Co., 193 Mo.App. 345, 186 S.W. 7; Kemper Mill Co. v. Mo. Pac. R. Co., 193 Mo.App. 466, 186 S.W. 8; Mo. Kans., etc., R. Co. v. Harriman, 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690; Donoho v. Mo. Pac. Ry. Co., 187 S.W. 141; Thompson v. Atchison, Topeka, etc., R. Co., 185 S.W. 1145; Blair Baker Horse Co. v. Atchison, Topeka & Santa Fe. R. R. Co., 200 S.W. 109.

The parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the Act and open the door to the very abuses at which the Act was aimed.

Blair Baker Horse Co. v. Atchison, Topeka & Santa Fe R. R. Co., 200 S.W. 109.

If the representatives of a railroad company could by conversations and letters and negotiations extend beyond the statutory or contract limit of time to bring suit and thereby set estoppel in operation so that the carrier could not assert and invoke the statutory right given in, which is part of the contract of shipment, their action would, in effect, amount to the equivalent of a waiver, and would operate to enable the carrier to discriminate between shippers, and thereby virtually nullify the statute.

Ga., etc., v. Blish, etc, v. 241 U.S. 197, 36 S.Ct. 541, 60 L.Ed. 948; So., etc., v. Prescott, 240 U.S. 638, 36 S.Ct. 469, 60 L.Ed. 836; St. Louis, etc., v. Landa (Civ. App.), 187 S.W. 358; Shroyer v. Chicago, R. I. & G. R. Co., 111 Tex. 24, 222 S.W. 1095.

Continuation of negotiations for settlement does not constitute a waiver or withdrawal of written notice disallowing the claim.

Spartan Mills v. Davis, Director General of Railroads, 119 S.E. 905, 126 S.C. 312; Chesapeake & Ohio R. Co. v. National Fruit Products Co. (W.Va.), 115 S.E. 631; William F. Mosser Co. v. Payne, 92 W.Va. 41, 114 S.E. 365.

The contract limiting the time within which suit may be brought is not a mere limitation of action, thereby constituting an affirmative defense, but is a condition precedent to the plaintiffs' right to maintain the suits.

Zang v. Ry. Express Co., 130 Ohio State 17, 196 N.E. 901.

In the case of Ellis et al. v. Davis, 260 U.S. 682, 67 L.Ed. 460, the Supreme Court of the United States declined to follow the reasoning of the Interstate Commerce Commission in Decker & Sons v. Director General, cited by the appellants as authority to sustain their position.

The provisions of a bill of lading covering an interstate shipment cannot be waived by the parties.

Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 60 L.Ed. 548; Chesapeake & Ohio Ry. Co. v. Martin and Porter, 283 U.S. 209, 75 L.Ed. 983.

Anderson, J., Smith, C. J., dissenting. Ethridge, J., concurs.

OPINION

Anderson, J.

Appellants, L. M. Kirkpatrick Company, a partnership, brought this action in the Circuit Court of Copiah County against appellee to recover damages alleged to have been caused by unreasonable delay in the shipment of three carloads of tomatoes by appellants to customers in Canada over appellee's line of railroad and its connecting carriers. The amount sued for was approximately $ 2, 000. By agreement of the parties, the cause was tried before the circuit judge sitting as judge and jury upon the pleadings in the cause, agreed facts and testimony, resulting in a judgment in favor of appellee. From that judgment, this appeal is prosecuted.

Appellee defended on the ground that when the suit was brought, under the Federal Commerce Act, Chap. 208, 46 Stat. 251, 49 U.S.C. A., sec. 20(11), and the terms of the bills of lading covering the shipments, issued in compliance with the said act, whatever cause of action, and the remedy therefor, existed, were barred because suit was not brought within two years and a day from the time appellee rejected, in writing, appellant's claim for the damages.

The shipments were made in June, 1934. At the time they were made, and bills of lading issued therefor, there was no duty on tomatoes shipped from the United States to Canada. However, before these shipments reached the Canadian line, a law of Canada had gone into effect imposing a tariff duty of 3 cents per pound. Appellants ascertained that it would be to their interest to sell the tomatoes on this side of the border rather than pay the duty, which they did, at a loss in the amount sued for. They alleged that if the shipments had been made with reasonable expedition, the tomatoes would have reached Canada before this duty went into effect.

The bills of lading for these shipments were in the form prescribed by the Interstate Commerce Commission. Sec. 2-b of the bill of lading is in this language: "As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury, or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid."

The Commerce Act contains this provision: "That it shall be unlawful for any such common carrier to provide by rule contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, for the filing of claims than four months, and for the institution of ...