Lyon v. Canadian Pacific Ry. Co.

• Decision Date: 09 October 1928
• Citation: 163 N.E. 180,264 Mass. 596
• Parties: LYON et al. v. CANADIAN PAC. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 596

163 N.E. 180

LYON et al.

v.CANADIAN PAC. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 9, 1928.

Report from Superior Court, Worcester County; Franklin T. Hammond, Judge.

Action by Abraham Lyon and others against the Canadian Pacific Railway Company. Decision for defendant. On report from the Superior Court. Judgment for defendant.

George R. Stobbs, Harold H. Hartwell, and Loue E. Stockwell, all of Worcester, for plaintiffs.

George S. Selfridge, of Boston, for defendant.

PIERCE, J.

This action of contract or tort is to recover for loss sustained by the plaintiffs as a result of damage to a certain shipment of herring from Seattle to Boston. The writ is dated September 8, 1926. At the trial in the superior court, held on February 2, 1928, the case was submitted to a judge without a jury upon the bill of lading and an agreed statement of facts. The judge found for the defendant and reported the case to this court.

The plaintiffs brought suit against the Boston & Maine Railroad by a writ dated September, 1923, returnable to the superior court for Worcester county on October 1, 1923, setting forth that on August 16, 1922, there were shipped from Seattle, Washington, three hundred sixty-five half barrels of herring to Boston over a series of railroads; that said herring were delivered in Boston by the Boston & Maine Railroad; and that due to carelessness and negligence of the defendant, the herring were damaged in transit and were delivered in an imperfect and damaged condition. The judge ruled that the plaintiff could not recover and reported the case to this court. On November 25, 1927, by rescript of this court, judgment was ordered for the defendant.

The facts set out in that case (Lyon v. Boston & Maine Railroad, 261 Mass. 251, 158 N. E. 663) in so far as they are in substance like the agreed facts in the present case need not be again recited. In addition to such facts it appeared in the present trial, and it is agreed:

That ‘on September 7th the plaintiffs notified the Boston & Maine Railroad that the 365 half barrels of pickled herring were received from the Boston & Maine Railroad in a damaged condition and totally unfit for food, and that the plaintiffs were going to claim damages'; that ‘on January 15, 1923, the plaintiffs filed their claim for damage to this shipment, with proper and supporting claim papers, with the Boston & Maine Railroad, claiming damages in the sum of $5,110, with interest at six per cent. from August 31, 1922. No claim of any kind was filed by the plaintiffs, or by the shipper, for loss or injury to this shipment, with or against this defendant, the Canadian Pacific Railway Company’; that ‘on July 11, 1923, the plaintiffs received a letter from the Boston & Maine Railroad disallowing said claim, on the ground that there was no delay in the shipment and the carriers had properly carried out the instructions in the bill of lading to re-ice the car at all icing stations.’

In its answer and at the trial the defendant relied upon section 2, clause (b), of the bill of lading which reads:

‘Claims for loss, damage, or injury to property must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six 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 six months (or nine months in case of export traffic) after a reasonable time for delivery has elapsed; provided that if such loss, damage, or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. Suits for loss, damage, injury, or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed: Provided, that in case the claim on which suit is based was made in writing within six months, or nine months in case of export traffic (whether or not filing of such claim is required as a condition precedent to recovery), suit shall be instituted not later than two years and one day after 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.’

The plaintiffs state their position before this court as follows:

‘The goods in question were delivered to the plaintiffs on September 1, 1922, and suit was brought...