Mt. Arbor Nurseries v. American Ry. Express Co.

• Citation: 300 S.W. 1051
• Decision Date: 10 January 1928
• Docket Number: No. 19773.,19773.
• Parties: MT. ARBOR NURSERIES v. AMERICAN RY. EXPRESS CO.
• Court: Court of Appeal of Missouri (US)

300 S.W. 1051

MT. ARBOR NURSERIES v. AMERICAN RY. EXPRESS CO.

No. 19773.

St. Louis Court of Appeals, Missouri.

January 10, 1928.

Appeal from Louisiana Court of Common Pleas; E. B. Woolfolk, Judge.

Action by the Mt. Arbor Nurseries against the American Railway Express Company. From a judgment for plaintiff, defendant appeals. Reversed.

Hostetter & Haley, of Bowling Green, for appellant.

Ras Pearson and F. D. Wilkins, both of Louisiana, Mo., for respondent.

BENNICK, C.

This action was instituted by plaintiff, the consignor, to recover from defendant the sum of $212, the alleged value of an interstate shipment of merchandise which the latter failed and neglected to deliver to the consignee. A jury was waived by the parties, and the cause tried before the court alone, resulting in a finding and judgment in favor of plaintiff for the full amount sued for, from which defendant has duly appealed.

Suffice it to say of the pleadings that they are all in conventional form and are immaterial upon the issue here presented, save for the allegation in the answer that the claim referred to in plaintiff's petition was not filed with defendant within 6 months and 15 days after the date of the shipment mentioned, and was therefore barred.

The evidence disclosed that the shipment in question was made on January 25, 1923, from Shenandoah, Iowa, to a customer of plaintiff company in Kittrell, N. C., and that a period of from 5 to 10 days would have been a reasonable time for the delivery of same to the consignee. The court specifically found that no delivery of the shipment was made by defendant, but that the same was lost in transit, and that plaintiff did not give defendant written notice of its claim within the period of 6 months and 15 days.

The law of the case, as declared by the lower court in its finding, was that defendant having received the merchandise for shipment to its destination, having issued its receipt and bill of lading therefor, and having neglected and failed to make delivery for the reason that the merchandise was lost in transit, became liable to the plaintiff for the reasonable value thereof; and that the loss and damage herein sued for did not fall within the classification of claims which must be made in writing to the carrier within 6 months and 15 days after the date of shipment as a condition precedent to recovery, but that this class of loss was excepted from said requirement.

As the case comes to us, the sole question for our determination is whether plaintiff's right to recover for the loss incurred by reason of the nondelivery of the shipment in question may be made to depend upon the timely filing by it of a claim in writing, as required by the provisions of the bill of lading in the event of "failure to make delivery," or whether the facts of this case bring it within that class of claims as to which no notice is required.

Section 7 of the uniform express receipt, in effect at the time of shipment, and issued by defendant to plaintiff, reads as follows:

"Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery claims must be made in writing to the originating or delivering carriers within six months after delivery of the property, or, in case of failure to make delivery, then within six months and fifteen days after date of shipment; and suits for loss, damage, or delay shall be instituted only within two years and one day after the date 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."

It will be observed that the language employed in the above receipt with reference to the classes of claims as to which the giving of notice is not required was taken almost bodily from the text of certain provisos of the Cummins Amendment (Act of March 4, 1915, 38 Stat. 1196, 1197, e. 176 [49 USCA § 20, par. 11; U. S. Comp. St. § 8604a]) to the Interstate Commerce Act (Act of February 4, 1887, 24 Stat. 379, c. 104, as amended by section 7 of the Act of June 29, 1906, 34 Stat. 584, 593, c. 3591), which were interpreted by the United States Supreme Court in the case of Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, 69 L. Ed. 857, to read as follows:

"Provided further, 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 and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded or damage in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery."

As construed by the United States Supreme Court (Davis v. John L. Roper Lumber Co., 269 U. S. 158, 46 S. Ct. 28, 70 L. Ed. 209, 44 A. L. R. 1357), the last proviso above, dispensing with the necessity for notice, embraces three classes of claims: First, loss, damage, or injury due to delay; second, damage while being loaded or unloaded; and, third, damage in transit. It has also been held that the qualification respecting "carelessness or negligence" is an element in each of the cases of loss, damage, or injury therein specified, subject, however, to such limitation as we shall have occasion hereafter to discuss.

It would seem upon a casual consideration of the facts of this case that it was clearly one of "failure to make delivery," so that the filing of a claim in writing by plaintiff, within 6 months and 15 days after...