Louda v. Prague Assurance National Corp.

• Decision Date: 09 June 1952
• Docket Number: ASSURANCE-NATIONAL,Gen. No. 45541
• Citation: 106 N.E.2d 757,347 Ill.App. 211
• Parties: LOUDA v. PRAGUECORP. et al.
• Court: United States Appellate Court of Illinois

Page 757

106 N.E.2d 757

347 Ill.App. 211

LOUDA v. PRAGUE ASSURANCE-NATIONAL CORP. et al.

Gen. No. 45541.

Appellate Court of Illinois, First District, First Division.

June 9, 1952.

Erich W. Lademann and Maurice A. Garvey, Chicago, for appellant.

John F. Brezina, Chicago, for appellee.

BURKE, Presiding Justice.

Frank Louda filed a two count complaint in the Superior Court of Cook County against Prague Assurance-National Corporation, a corporation organized under the laws of Czechoslovakia, and The Baltimore & Ohio Railroad Company. Count I alleged a cause of action against the Assurance Corporation on a policy providing against loss or damage to a shipment of household goods. The second count stated a cause of action against the railroad company for damages claimed to have resulted from the alleged failure to safely and securely carry the shipment from New York City of Chicago. The Assurance Corporation was not served with a summons. The railroad company, denying receipt of the shipment and other material allegations of the complaint, averred as a special defense failure on the part of plaintiff to file with it written notice of claim within nine months after date of delivery of the goods, or within nine months after a reasonable time for delivery had elapsed pursuant to Sec. 2(b) of the bill of lading, such notice being a condition precedent to plaintiff's recovery. On a trial without a jury the court entered judgment against the railroad company for $2,600. In this appeal it asks that the judgment be reversed.

Plaintiff now resides in California. He came to the United States from Prague, Czeckoslovakia in 1946. In April of that year at Prague he called in the Intercontinental Shipping Company, an international shipper, which supervised the packing of his household goods for shipment to Chicago. During April, 1946, a truck picked up the chattels at Prague and delivered them to a railroad for delivery to the ship at Rotterdam, Holland. The shipment, consisting of eight cases, one bale and one crate aggregating 4,200 pounds, was placed aboard the Steamer Henry R. Brown at Rotterdam and arrived in New York harbor on June 28, 1946. Records of the United States Customs House in New York indicate damage to the cases and contents when received there. The goods were transported by truck to defendant's railroad in New York, where on July 17, 1946, it issued its bill of lading to Vandergrift & Co., Inc., as consignor for shipment to '(Collector of Customs, Chicago, Illinois,) Frantisek Louda, c/o Mrs. Mary Vig, 714 E. 90th Street.' Plaintiff came to Chicago for the first time in May, 1946. He then left Chicago on a trip around the United States. In July or August, 1946, he returned to Chicago. Pursuant to notice, in August, 1946, plaintiff visited the United States Customs House in Chicago and partially examined the goods. These chattels were later carted to his home at 2810 South Homan Avenue, Chicago, where he made a more thorough examination and found that the unlined tops of the cases were broken; that water was located on top of some and inside others; and that porcelain and glassware were broken and linens and bed clothes wet and mildewed. Some of the broken and damaged articles consisted of dishes, handpainted pictures, porcelain, glassware, clothing and such. Mr. R. B. Walker, a marine surveyor and representative of Lloyds Insurance Company, was called in, checked the goods and estimated the damage to various articles. He testified that the only time he examined the damaged goods was in the garage at 2810 South Homan Avenue. Louis Jirasek, a friend of plaintiff, was present and assisted in the examination of the goods both at the Customs House and at 2810 South Homan Avenue.

The first criticism leveled at the judgment is that the court erred in failing to give effect to provision 2(b) of the bill of lading requiring, as a condition precedent to recovery, written notice within nine months. The relevant provision of the bill of lading was adopted pursuant to an Act of Congress (Sec. 20, Paragraph 11, Title 49, U.S.Code Annotated Statutes.) The pertinent portions of Section 2(b) of the bill of lading are as follows:

'As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing the bill of lading, or carrier on whose lines the loss, damage, injury or delay occurred, within nine months after delivery of the property * * *. Where claims are not filed * * * in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.'

Plaintiff maintains that he is not precluded from recovery because of the nine month time limit for filing notice of claim as notice, both oral and written and confirmed by letters, was given within nine months after discovery of the loss, and that the evidence, including the exhibits, shows timely and actual notice of and investigation of the claim by the defendant. Plaintiff says that the actual notice of and investigation of the claim by the defendant makes technical formal notice 'useless,' and that such actual notice and investigation fulfill the purpose of the notice requirement of the bill of lading.

On October 17, 1946, plaintiff's attorneys sent a letter to defendant in Chicago, 'Attention Mr. Harrington, Re: Claim of Frantisek Louda,' which reads:

'On or about the 12th day of September 1946, our client, Frantisek Louda, had occasion to inspect a shipment of his personal effects and other belongings in the Office of the Customs, Chicago, Illinois, wherein your Mr. Harrington was present. We have been requested by Intercontinental Transport Association, Prague Czeckoslovakia, to obtain the inspection papers from the railroad company handling the shipment. In this case it is the Baltimore & Ohio Railroad. May we expect this certificate of inspection at an early date?'

On July 6, 1948, one of the attorneys for plaintiff sent a letter to defendant enclosing a bill of lading 'as requested' and asking...