St. Louis, I. M. & S. R. Co. v. Laser Grain Co.
| Decision Date | 12 July 1915 |
| Docket Number | (No. 119.) |
| Citation | 179 S.W. 189 |
| Parties | ST. LOUIS, I. M. & S. R. CO. v. LASER GRAIN CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Johnson County; Hugh Basham, Judge.
Action by the Laser Grain Company against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
This suit was brought by the Laser Grain Company to recover damages alleged to have arisen from the negligence of the railway company in the shipment of 27 car loads of peaches from designated points in this state to various points in other states. Some of the peaches were loaded in cars used for shipment of meat; the railway company furnishing them for the use. It was alleged that the peaches were damaged, occasioning the loss on account of unreasonable delay in transportation, failure to furnish proper cars, and failure to properly ice the shipments in transit. Each of the 27 counts of the complaint specified the damage of the shipment of a particular car, designating the different amounts claimed therefor.
The railway company answered, denying the allegations of the complaint, and pleaded specially two of the provisions of the contract of shipment, stipulating that the amount of any loss or damage for which it was liable "shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading," etc., and that 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 of the shipment, within four months after delivery of the property, etc., and, unless so made, the carriers shall not be liable.
The cases were tried before the court without a jury, and judgment rendered upon each count of the complaint in appellee's favor, except No. 23.
It appears from the testimony that the peaches were loaded into the cars in good condition, some of them were delayed in shipment and all arrived at destination more or less damaged, as a result of the unusual delay in transit and the failure to properly refrigerate. The testimony also tended to show the amount of such damage. Laser stated that the peaches in the different cars had been sold f. o. b. the point of shipment at a certain price per bushel or crate, except certain cars designated by him to be sold on commission, the amount that was realized on the sale of the shipment at the point of destination, the amount of the freight, icing, and other charges claimed as damages. There was other testimony relative to some of these amounts. He was allowed to state, over appellant's objection, that he knew the market price of the peaches in Boston, the destination to which three of the shipments were consigned, on the date of the sale there, from having read the market quotations and price lists, although he had no such lists from which to testify.
The court refused to declare the law to be that the burden of proof was upon plaintiff to show that a written notice of claim for damages was given within four months to the agent of the defendant at the point of origin of shipment, and also that such a provision requiring written notice of the claim for damages was valid, and, unless given, would defeat a recovery.
The court also refused to find, as a fact, that the railroad had exercised all necessary diligence in supplying refrigerator cars for the shipment of peaches from the state in the year 1912; that on account of the unusual demand for such cars during the peach shipping season it was forced to substitute what it called "meat cars," as they were the only ones available, to supply the demand; and that the damage to the peaches shipped therein were caused from the bunkers not being sufficiently large to hold enough ice to keep them properly refrigerated.
The court found in favor of plaintiff on 26 of the 27 counts of the complaint for damages to that number of cars of peaches, designating the amount on each count, and rendered judgment accordingly, from which this appeal is prosecuted.
Thos. B. Pryor, of Ft. Smith, for appellant. W. Covington, of Ft. Smith, and Sellers & Sellers, of Morrilton, for appellee.
KIRBY, J. (after stating the facts as above).
Appellant's first contention is that the court erred in not finding in its favor because no claim in writing for damages was made to the carrier within four months after the delivery of the shipment, as required by the bills of lading. A stipulation of like kind in a bill of lading or contract of carriage has been held reasonable and valid, and the failure of the shipper to present his claim in writing within the time specified conclusive of his right to recover. See C., R. I. & P. Ry. Co. v. Williams, 101 Ark. 436, 142 S. W. 826; C., R. I. & P. Ry. Co. v. Poster, 176 S. W. 682. Failure to give notice in accordance with this provision of the contract of carriage, having been specially pleaded and relied upon as a defense, cast the burden of proof upon the shipper to show either a compliance with it or a waiver of the requirement by the carrier in order to a recovery. St. L. & S. F. R. Co. v. Keller, 90 Ark. 313, 119 S. W. 254; St. L. & S. F. R. Co. v. Pearce, 82 Ark. 357, 101 S. W. 760, 118 Am. St. Rep. 75, 12 Ann. Cas. 125; Cumbie v. St. L., I. M. & S. R. Co., 105 Ark. 406 and 415, 151 S. W. 240. Such a stipulation has been held to be one for the protection of the carrier, compliance with which can be waived by it. 6 Cyc. 509; St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, 115 S. W. 933; St. L., I. M. & S. R. Co. v. Shepard, 168 S. W. 137.
It is true that no claim in writing was made to the carrier either at the point of origin or delivery of shipment within the time specified. But it is also true that a written claim for damages upon each of the shipments made, except three cars, was presented to the general freight agent of the railway company in St. Louis by appellee company, whose manager talked with the agent upon the adjustment and settlement of the claim for damages upon each of said cars, and also with the agent, Mr. Wyler, of the American Refrigerator Transit Company, to whom he was referred by appellant's agent relative thereto. This witness stated the claims for each of the said cars, except three, were made out in writing and mailed to Mr. Walton, the general freight claim agent of the railway company at St. Louis, and that the receipt of claims had been...
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