St. Louis & S. F. R. Co. v. Keller
| Decision Date | 26 April 1909 |
| Citation | 119 S.W. 254 |
| Parties | ST. LOUIS & S. F. R. CO. v. KELLER. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.
Action by W. F. Keller against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.
W. F. Evans and B. R. Davidson, for appellant.
This is a suit instituted by the plaintiff, W. F. Keller, against the defendant, St. Louis & San Francisco Railroad Company, for a recovery of damages to a shipment of peaches. It is alleged in the complaint that on July 20, 1907, the plaintiff delivered to the defendant at Van Buren, in the state of Arkansas, 515 crates of peaches, and that the defendant by its written contract of shipment agreed to carry same to New York in the state of New York and there deliver same to D. T. Goldsmith. It is alleged that the peaches were greatly damaged on account of the unnecessary and unreasonable delay in their transportation, and by the neglect and failure to properly and sufficiently ice and keep iced the refrigerator car in which the peaches were carried, so as to preserve and keep them sound and firm. In its answer the defendant interposed a number of defenses to a recovery in this case. It pleaded that from the complaint it does not appear that any damage was done to the shipment on defendant's line of railroad, and that the plaintiff seeks to recover from defendant damages to the peaches which occurred on the line of railroad of another and connecting carrier, under the provisions of the act of Congress commonly known as the "Hepbburn Act," and which was approved June 29, 1906 (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1907, p. 892]), and which is amendatory of the interstate commerce act approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), that that act, in so far as it attempts to hold liable the initial carrier for the negligence of a connecting carrier, is unconstitutional and invalid, and, if valid, that the state courts have no jurisdiction to enforce the rights thereby created. The defendant further denied every allegation of negligence and damage, and specifically pleaded that according to the written contract of shipment it was provided that a notice in writing of the claim for loss or damage must be given within 30 hours after the arrival of the property at destination and delivery, and that, if such notice was not given, a recovery could not be had, and it alleged that such notice was not given.
By the contract under which these peaches were shipped, it was provided: Relying upon the validity of the above stipulations, the defendant asked the giving of the following instructions: The court refused to give these instructions.
The evidence tended to prove that the peaches were delivered to the defendant for transportation on July 20, 1907, consigned to "D. T. Goldsmith, Pier 29 New York, care of Vandalia," and that they arrived on the docks in New York, Pier 29, at 12 o'clock on July 28, 1907, and on the same day were delivered to D. T. Goldsmith, who began an examination of the same on the night of that day by opening the crates and baskets and inspecting the peaches, and he testified that he then found them in a very unsound and decayed condition. On the morning of July 29, 1907, D. T. Goldsmith, the party named as consignee in the bill of lading, executed a written receipt for the peaches, in which he stated, "Received in good condition the following described packages," and then follows a description of this shipment of peaches. Thereafter, and on the 29th day of July, 1907, the peaches were sold by plaintiff's agent at a very greatly reduced price on account, as it is claimed, of their damaged condition. It does not appear that any notice of any kind was given at any time of the intention to claim damages or of any claim of damages.
Inasmuch as the right of plaintiff to recover herein is determined by the failure to give the notice of the claim of damages as required by the stipulations of the contract of shipment, we do not think it necessary to enter into a discussion and determination of the other defenses interposed by defendant. The contract of shipment in this case specifically provided that, before a recovery could be had, a notice in writing must be given of loss or damage within 30 hours after the arrival of the peaches at destination and their delivery; that is to say, a notice of the intention to claim damages must be so given. And in this case such notice was not given. This provision of the contract does not affect the liability, itself, of the common carrier created or caused by the act itself of injury or of negligence. It is not a limitation of or an exemption from liability done or caused by such act of injury or negligence. Therefore this provision does not itself limit the common-law liability of the carrier, nor does it exempt the carrier from the performance of any common-law duty or from the common-law liability imposed upon it by any failure or...
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