N. Pelaggi & Co. v. Central Vermont Ry. Co.

Decision Date02 June 1923
Citation121 A. 441,97 Vt. 1
PartiesN. PELAGGI & CO. v. CENTRAL VERMONT RY. COMPANY
CourtVermont Supreme Court

February Term, 1922.

ACTION OF CONTRACT to recover for damages to an interstate shipment. Pleas, a general denial, and that the action was not commenced within two years and one day from the time the cause of action accrued. Replication of no such limitation and of waiver, and estoppel. Trial by jury, at the September Term, 1921, Washington County, Moulton, J., presiding. On motion the court directed a verdict for the defendant, and judgment was entered thereon. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Theriault & Hunt for the plaintiff.

W R. McFeeters for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION
TAYLOR

This is an action for damage to a granite keystone shipped by the plaintiff from Northfield, Vt., to Orange, N.J., over the lines of the defendant and its connecting carriers, the Erie Railroad being the carrier at the point of delivery. The keystone arrived at its destination in a damaged condition on September 19, 1917. On October 2, 1917, the consignee gave the Erie Railroad notice of claim for damages and on October 10, 1917, paid the "expense bill." January 24, 1918, the plaintiff mailed to the defendant's claims agent a claim in writing for damage to the keystone, receipt of which was acknowledged the following day. Negotiations for adjustment of the claim, both by correspondence and by personal interviews, were pending until November 8, 1919, when the plaintiff was informed that nothing more could be done in the matter. This action was commenced January 14, 1920, nearly two years and four months after delivery of the shipment.

Besides the general denial the defendant answered, in substance, that the action was not commenced within two years and one day from the time the cause of action accrued. The plaintiff replied thereto, in substance, that the contract under which the shipment was carried contained no limitation as to time within which the action should be commenced; but if such there was, the defendant by its conduct set forth in the replication had waived the limitation and estopped itself from relying thereon in defense to the action. At the close of the evidence the court sustained the defendant's motion for a directed verdict, holding in effect that the action was barred by plaintiff's failure to make claim in writing for the damage complained of within four months after delivery of the property, and, as well, by failure to commence the action for the damage within two years and one day after delivery. In granting the motion the court held that the limitations specified in bills of lading had the force of law and could not be waived. Exceptions saved to the direction of a defendant's verdict present the principal questions before us for review.

Since this was an interstate shipment the rights of the parties are controlled by federal statutes and regulations relating to interstate commerce, as construed and applied by the Supreme Court of the United States. Piper v. Boston and Maine Railroad, 90 Vt. 176, 97 A. 508; Atchison, etc., Ry. Co. v. Robinson, 233 U.S. 173, 180, 58 L.Ed. 901, 34 S.Ct. 556. The parties disagree as to what the contract was under which this shipment moved and particularly what limitations, if any, it contained respecting actions for damage to the property. The bill of lading issued to the plaintiff was on a form formerly in use with the approval of the Interstate Commerce Commission. Among other conditions it provided: "Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable." The federal statute in force at the time of the shipment made it unlawful for a carrier in interstate commerce 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 a shorter period than four months, and for the institution of suits than two years; with the provision, 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 should be required as a condition precedent to recover. Barnes' Fed. Code, § 7976 (U. S. Comp. St., § 8592).

At the time of this shipment Official Classification No. 44, so-called, was in force and on file in the defendant's office at Northfield. The bill of lading prescribed by such classification for interstate shipments contained this condition: "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 carrier within six months after delivery of the property * * * or, in case of failure to make delivery, then within six months * * * after a reasonable time for delivery has elapsed; and suits for loss, damage, 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."

It must be held that the limitations of liability contained in Official Classification No. 44 apply to this shipment notwithstanding they were not a part of the bill of lading issued to the plaintiff. As the regulations found therein were prepared and filed agreeably to the requirements of the Federal statutes, they have, so far as they are consistent with such statutes, all the force and standing of federal enactments. Piper v. Boston and Maine R. R., supra, affirmed in Boston and Maine R. R. v. Piper, 246 U.S. 439, 62 L.Ed. 820, 38 S.Ct. 354, Ann. Cas. 1918E, 469. Congress has established a uniform rule of liability, to effectuate which the provisions of the official classification in force at the time of the shipment are deemed to enter into and form a part of the contract of shipment. Boston and Maine R. R. v. Hooker, 233 U.S. 97, 111, 58 L.Ed. 868, 34 S.Ct. 526, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; Galveston, etc., Ry. Co. v. Woodbury, 254 U.S. 357, 65 L.Ed. 301, 41 S.Ct. 114. It follows that the limitations as to time within which claims for damage must be made and suits therefor instituted, found in Official Classification No. 44, apply to the shipment in controversy. Tested by the conditions there imposed the claim for damage was seasonably made; but the action is barred, nevertheless, by failure to institute the suit within the time limited unless the plaintiff is entitled to the benefit of the exception respecting "damage in transit by carelessness or negligence," or is able to sustain the claim relied upon at the trial that the defendant had waived the limitation and was estopped by its conduct from relying thereon. The plaintiff assumes in argument that actions for damage in transit by negligence are not affected by the limitation as to time for instituting the suit and makes much of the claim that on the evidence the question whether the damage to the keystone was due to negligent handling in transit was for the jury. If it be conceded that the evidence had the tendency claimed for it, still it can avail the plaintiff nothing. It must be held that the exception relates only to the necessity of making a claim in writing as a condition precedent to recovery. In other words, the fact that the damage resulted from negligence in transit would dispense with the necessity of making the claim otherwise required, but it would not relieve the plaintiff of the requirement that the action be commenced within the time limited. Not only is this the fair construction of the regulation standing alone, but any possible doubt disappears when the regulation is read in connection with the proviso of the statute (quoted above) on which it is based.

Nor does the evidence relied upon to show waiver or estoppel afford the plaintiff any comfort. The question is settled by the holdings of the United States Supreme Court. It is said in Georgia, F. and...

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1 cases
  • Carter v. Fleming
    • United States
    • Iowa Supreme Court
    • February 11, 1947
    ... ... v. Hines, 97 Conn. 21, 115 A. 561; ... L. M. Kirkpatrick Co. v. Illinois Central R. Co., 190 Miss ... 157, 195 So. 692, 135 A.L.R. 607, 610. The last cited case ... holds that ... v ... Lazarus, 2 Cir., 278 F. 900, 903; 13 C.J.S., Carriers, § ... 242b, p. 500; N. Pelaggi & Co. v. Central Vermont Ry ... Co., 97 Vt. 1, 121 A. 441. We think the claim was barred ... ...

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