Strickland Transp. Co. v. Federated Dept. Stores, Inc.

CourtSupreme Court of Tennessee
Citation451 S.W.2d 677,224 Tenn. 129,2 Pack 129
Parties, 224 Tenn. 129 STRICKLAND TRANSPORTATION COMPANY, Petitioner, v. FEDERATED DEPARTMENT STORES, INC., Respondent.
Decision Date16 March 1970

Lee F. Miller, Jr., Memphis, of counsel, Wrape & Hernly, Memphis, for petitioner.

Charles O. McPherson, Memphis, of counsel, Burch, Porter & Johnson, Memphis, for respondent.

OPINION

C. HOWARD BOZEMAN, Special Justice.

On August 3, 1965, Federated through one of its divisions, Goldsmith's, shipped merchandise valued at $863.75 to McGregor-Doniger Company in Dover, New Jersey by Strickland Transportation, an interstate carrier by motor vehicle. On November 26, 1965, Federated shipped merchandise valued at $1,320.00 by Strickland to Petti-Glen Manufacturing Company, Milwaukee, Wisconsin. Neither of the shipments reached its consignee, and upon Strickland's refusal to pay for the goods, Federated brought this suit. In count 1 of its declaration Federated sued for negligent failure to deliver as agreed; in count 2, it invoked T.C.A. § 24--515, which makes failure of a bailee to return or redeliver property according to contract prima facie evidence of negligence; in count 3 it invoked § 20, 11, and § 319, Title 49 U.S.C. Section 20(11) is referred to as the Carmack Amendment and contains provisions concerning the liability of an initial and delivering carrier; limitation of liability; and notice of filing claims. Section 319 of this title makes § 20(11) applicable to carriers by motor vehicles.

Strickland defended on the ground Federated had not made demand of payment for the goods within nine months after a reasonable time for delivery as provided by the straight bill of lading covering the interstate shipments. Specifically it was contended that claim was not made on the first shipment until sixteen months after date of shipment, and not until fourteen months after date of shipment on the second.

At the nonjury trial it was stipulated that Strickland had received the two shipments of goods for interstate carriage on uniform straight bills of lading and that the shipments had not been delivered. It was further stipulated that thirty days was a reasonable time for delivery of the two shipments.

Counsel for Federated stated the sole issue as follows: 'goldsmith's made a claim against Strickland for the value of the merchandise in these two shipments. This claim was denied on the basis that Goldsmith's had not filed a claim within the nine month period that is contained in the contract bill of lading. That, Your Honor, is the sole issue in this cause, and it is the only issue, as to whether or not Goldsmith's did file a claim within the meaning of that term as interpreted by the cases and the Federal Statutes, that is, whether or not the claim was made within the nine-month period. We concede that no formal claim was filed on a claim form that is furnished by the defendant, Strickland Transportation Company, but it is our contention that, from the correspondence between the parties, which consisted of letters requesting Strickland Transportation Company to locate the shipment, copies of invoices covering the value of the merchandise and items of merchandise and bill of lading, that this sufficiently constituted a claim under the law to justify Strickland Transportation Company to pay Goldsmith's for the value of the merchandise'.

The trial judge, upon conclusion of plaintiff's proor-in-chief, dismissed the suit on the grounds that 'the exhibits and oral testimony introduced by the plaintiff required a finding that under the provisions of the bill of lading no claim was filed by the plaintiff within the nine-month period.' Federated appealed, and the Court of Appeals reversed, rendering a judgment in favor of Federated. The case is now before this Court on granting of Strickland's petition for certiorari.

At the trial, in addition to the correspondence referred to in Federated counsel's statement of the issue 1 Federated introduced two witnesses, Sam Marks, Comptroller at Goldsmith's, and Dorothy Mize, employed in the Accounts Payable Division. Mr. Marks testified that his duties included the returning of merchandise for credit; that he recalled the shipments in question; that he did write Strickland asking it to waive the nine months claim provision of the bill of lading after the claim period had expired. That prior to this time he was not familiar with the provisions of the bill of lading requiring notice and demand.

Mrs. Mize attended to some of the correspondence with respect to the two shipments and talked to Strickland's tracing department in Memphis to secure help in tracing the goods. On cross-examination she testified as follows:

'Q. Do these letters, the three letters, I believe, in all, do they constitute the entire body of correspondence with Strickland?

A. Yes, sir.

Q. And you have nothing else in your file with respect to these two purported losses of shipments?

A. I don't know.

Q. You don't know?

A. I don't know of anything else.

Q. Mrs. Mize, both of these collective exhibits can be referred to as tracers, can they not?

A. Yes, sir.

Q. Mrs. Mize, is there any place in the documents which states language to indicate that you are going to make a claim against Strickland Tansportation Company?

A. No, sir.'

The bills of lading attached to the exhibited correspondence are uniform straight bills of lading and each contains this stipulation:

'Sec. 2(b). As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery then within nine months after a reasonable time for delivery has elapsed; and suit shall be instituted against any carrier only within two years and one day from the day 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 specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.'

In view of the statement of the issue to be tried by Federated's counsel, we are not concerned with the question whether a stipulation such as the one copied above is a valid condition precedent to recovery, the stipulation of the issue concedes this. However, Federated's counsel conceded nothing against Federated's interest as the validity of stipulations for written demand have been held by this Court to be valid conditions precedent to recovery. Railway Express Agency v. General Shoe Corp., 197 Tenn. 561, 276 S.W.2d 725 (1955).

The best statement we have been able to find as to what will constitute a claim in writing within the provision of an interstate bill of lading is that in Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir. 1951, 187 F.2d 675. There, it is said that a 'claim in writing' within the provision of a bill of lading requiring that claim be filed in writing with the receiving or delivering carrier as a condition precedent to recovery for loss of goods, must be a written document, however informal in expression, indicating an intention on the shipper's part to claim reimbursement from the carrier for a loss asserted to have occurred in the past, and sufficiently identifying the shipment in question either on the face of the document or by reference to previous correspondence between the parties. The document need not be in any particular form to constitute a 'claim in writing', since the condition is addressed to practical exigency and so must be construed in a practical way. However, the writing must indicate an intention on the shipper's part to claim reimbursement from the carrier for the past loss.

This statement has been adopted in Am.Jur.2d, Carriers, § 585 and has been the basis of decision in numerous cases. See Louda v. Prague Assurance-National Corp., 347 Ill.App. 211, 106 N.E.2d 757 (1952); Central Wholesale Co. v. Chesapeake & O.R. Co., 366 Mich. 138, 114 N.W.2d 221 (1962); Public Service Electric & Gas Co. v. Reading Co., 17 N.J.Super. 148, 85 A.2d 548, aff'd 9 N.J. 607, 89 A.2d 242 (1952). See also cases cited in the following paragraph.

It is immediately apparent that Federated's correspondence with Strickland did...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT