Pitman Mfg. Co. v. Centropolis Transfer Co., 54709

CourtUnited States State Supreme Court of Missouri
Citation461 S.W.2d 866
Docket NumberNo. 1,No. 54709,54709,1
PartiesPITMAN MANUFACTURING COMPANY, a Corporation, and A. B. Chance Co., a Corporation (Successor of Pitman Manufacturing Company, a Corporation), Respondents, v. CENTROPOLIS TRANSFER COMPANY, Inc., a Corporation, Appellant. l
Decision Date14 December 1970

Don M. Jackson, Kansas City, for respondents; Jackson & Sherman, Kansas City, of counsel.

John C. Risjord and Gordon, Adams, Niewald & Risjord, Kansas City, for appellants.

HOUSER, Commissioner.

This is a suit by a manufacturer, Pitman Manufacturing Company and its successor, A. B. Chance Co., both corporations, as assignee of its consignee, Standard Auto Body Company, Inc., against an interstate motor carrier, Centropolis Transfer Company, Inc., for damages to certain machinery, equipment and accessories delivered by Pitman to and accepted by Centropolis for interstate shipment from Pitman's Grandview, Missouri plant to the consignee at Los Angeles, California, and damaged or destroyed in transit.

Pitman's petition for damages on which the liability phase of the case was tried was in two counts. Count I sought to establish liability under the provisions of Title 49 U.S.C.A. § 20(11). Count II was based upon negligence. Centropolis' answer admitted delivery of the shipment to defendant under a uniform straight bill of lading, but generally denied and specifically raised the defense that if damage was sustained there could be no recovery for failure to comply with the terms of the bill of lading requiring written notice of claim within nine months of the date of the alleged loss. 1 Both parties filed motions for summary judgment, together with supporting affidavits and depositions. Centropolis' motion was overruled. Pitman's motion was sustained and summary judgment was rendered for Pitman on Count I for 33,655 plus interest. Count II was dismissed. Centropolis appealed.

Centropolis' first point is that the court erred in not sustaining its motion for summary judgment and in entering judgment for Pitman because there is no evidence that a written notice of claim was filed within nine months as required by the bill of lading; that as a matter of law Pitman cannot recover because under the decided cases 2 no written claim was filed with the carrier. Pitman counters with the arguments that there was undisputed evidence of substantial compliance with the requirement and that under the decided cases 3 Pitman is entitled to affirmance of the judgment as a matter of law.

All of the parties agree that shortly after the accident in which the damage occurred Mr. Suddarth, President of Centropolis, and its insurance carrier, Firemen's Fund Indemnity Company, received a report of the happening of the casualty; that Mr. Cuddy, claim adjuster for Firemen's Fund, began an investigation within a matter of hours after he received the report; that Centropolis' equipment was sent out to pick up the damaged cargo, remove it from the scene and return it to Pitman's factory; that three days after the accident, on May 24, 1963, Messrs. Suddarth and Cuddy met at the Pitman plant with Jack Smith, counsel and secretary of Pitman, and Dean Broderson, its chief engineer and vicepresident, to see what was damaged, discuss the situation, 'see about getting things rolling' and 'discuss the claim in general.' While there all four men inspected and discussed the damaged and destroyed items, and Mr. Broderson, and engineer, answered Mr. Cuddy's and Mr. Suddarth's questions. (Prior to the meeting Mr. Suddarth had a telephone conversation with Jack Smith the nature of which was 'that there was a claim or there was damage and we would get the thing taken care of.')

Jack Smith's affidavit recites '* * * that on May 21, 1963, a truckload of products manufactured by Pitman and consigned to Standard Auto Body Company, Inc., of Los Angeles, California, f.o.b. the Pitman plant in Grandview, Missouri, was damaged by reason of a truck owned by Centropolis Transfer Company, on which such products were being transported, having been driven into a railroad underpass in which there was not sufficient clearance for the load; that immediately following this accident, all damaged products were removed from the sence and returned to the Pitman premises; that he was thereafter authorized and instructed by Standard Auto Body Company, to whom title had passed under the f.o.b. sale arrangement, to act for and in its behalf in processing and settling the claim for damages against Centropolis.

'That within a few days following this accident, he had a conference in his office at Pitman Manufacturing Company with Marvin Cuddy of Fireman's Fund, insurance carrier for Centropolis, and with D. R. Suddarth, President of Centropolis, concerning the handling of the claim for damage to these products; that during this conference affiant advised both Mr. Cuddy and Mr. Suddarth that claim was made for the total loss of the products, including the profit factor to Pitman, and that the claim was not limited to the cost of manufacturing; that during this conference, affiant and another executive of Pitman, Mr. Broderson, who was also present, delivered to Mr. Cuddy and Mr. Suddarth the complete file covering the products and containing all invoices, all memoranda covering the load and cost of manufacture, together with all bills of lading; that Mr. Cuddy went through all the written documents so presented to him and made extensive notes concerning all the items at the time; that the contents of the file delivered to him at that time contained and covered the complete claim of damage to the products; that during the same conference and after the written file was reviewed, Mr. Cuddy made an offer to pay the full manufacturing costs in settlement of the claim, which offer was thereupon refused.

'That when the offer was refused, Mr. Cuddy stated that, in order to reduce the amount of the claim, his company desired Pitman to build a fence around the material and to use as much of it as could be used in the building of other equipment in order to reduce the claim by salvage; that following the request so made, Pitman did proceed to segregate the products, build a fence around it, and to salvage such parts as could be so used; that he thereafter continued as Secretary of the corporation until he terminated June 1, 1964, during which time he frequently conferred with Mr. Cuddy with reference to the progress of the salvage and the final amount of the net claim, several thousand dollars worth of salvage having been accomplished prior to the time that he left the employ of this corporation.

'That, to his best knowledge and belief, the file delivered by him to Mr. Cuddy and Mr. Suddarth at the time of the conference shortly after the occurrence of this accident contained full and complete information, in writing, concerning the identity of all products involved in the accident and thereby damaged; that the written information so furnished the defendant and its insurance adjuster was presented to them, at their request, as written claim for the damage, the exact amount of the loss being the only thing at that time undetermined, pending ultimate salvage figures.'

Dean Broderson's affidavit, which confirms that of Jack Smith, more particularly described the file delivered to Messrs. Cuddy and Suddarth as 'the complete file covering the products, including written invoices to (the consignee) and written memoranda covering the products contained in this load, together with the bill of lading' and stated that the written documents contained 'a full, complete and accurate statement of the value of the three PC--5 Hiliners in the load so damaged and destroyed' and 'that such written documents constituting the claim were physically delivered to Mr. Cuddy at the time.'

Jack Smith by deposition testified that the file was 'presented' to Mr. Cuddy, who made a penciled list of the items in the shipment, on which he wrote quantities and descriptions; that Mr. Cuddy made motes from the file at a desk and asked how much was involved; that the Pitman representatives stated that the invoices on the three major units added up to $40,000 and they estimated the total at perhaps $45,000; and that Mr. Cuddy looked at the invoices. Mr. Smith testified that it was possible that copies of the three invoices for the large amounts (each in the sum of $13,289.60) were given to Messrs. Suddarth and Cuddy to keep; that he thought they received them but was not certain and finally testified that he did not recall one way or the other.

Mr. Broderson's deposition verified the fact that at the conference of May 24, 1963 the file was put before Messrs. Suddarth and Cuddy so they could read it; that they looked at it and questioned what was meant by list price and net price; that Mr. Cuddy took notes on the contents of the file presented to him.

In his deposition Mr. Cuddy conceded that at the conference someone mentioned the figure of $40,000 to $50,000; that they reached an understanding that Pitman would salvage; that the gist of what Pitman said was 'We will salvage it and you pay us the net loss'; that the time element involved in salvage was not mentioned; that there was a general discussion about cost price as against sale price; that he anticipated receiving a claim; that he left the meeting with a request for information to be supplied later; that at his office he made a claim file and assigned it a number; that he had his company establish reserves for the payment of the claim, knowing that it would be a substantial claim; that for a period after the conference Mr. Cuddy tried 'every week or so' to make contact with Pitman officials by telephone with respect to the claim; that he received the information by telephone from Mr. Smith during the latter part of May, 1963 that the selling price figure on each of the three destroyed Hi-Liner units was $13,289.60;...

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