Union Pacific R. R. Co. v. Pacific Market Co.

• Decision Date: 26 August 1921
• Docket Number: 957
• Citation: 27 Wyo. 501,200 P. 108
• Parties: UNION PACIFIC R. R. CO. v. PACIFIC MARKET CO
• Court: Wyoming Supreme Court

200 P. 108

27 Wyo. 501

UNION PACIFIC R. R. CO. v. PACIFIC MARKET CO

No. 957

Supreme Court of Wyoming

August 26, 1921

ERROR to the District Court, Albany County, HON. V. J. TIDBALL Judge.

Reversed.

Herbert V. Lacey and John W. Lacey, for Plaintiff in Error.

The court erred in receiving evidence as to the communication of notice to defendant of the infected condition of the pens the point not being put in issue by the petition instructions given the jury as to the measure of damages and as to the recovery of interest upon an unliquidated claim, were erroneous and the trial court erroneously instructed the jury as to the duty of defendant to give warning of the infection of the yards a point not in issue. The court erred in refusing defendants request for a directed verdict. The only negligence charged against defendant was in permitting the pens and yards to become infected, and no evidence was introduced to support it. The evidence failed to show notice or presentation of a claim for damages as required by the bill of lading. This fact entitled defendant to a directed verdict. (St. L. & S. F. R. R. Co. v. Wynn, 153 P. 1156; St. Louis & S. F. R. R. Co. v. Zickafoose, 39 Okla. 302, 135 P. 406; M. K. & T. Ry. Co. v. Harriman, 227 U.S. 657; K. C. S. Ry. Co. v. Carl, 227 U.S. 639; Adams Express Co. v. Croninger, 226 U.S. 491.) The Carmack Amendment to the Hepburn Act, (34 Stats. 503) supersedes all state laws and places interstate shipments under the control of federal statutes. Requirements in interstate shipping contracts as to notice of damages cannot be waived by the carrier. (G. T. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190; Phillips v. Grand Trunk Ry. Co., 236 U.S. 662; Chicago R. I. & P. Ry. Co. v. Gray, 165 P. 157; M. K. & T. Co. v. Harriman, 227 U.S. 657; Bailey v. Mo. P. Ry. Co., 171 S.W. 44.)

Corthell, McCollough and Corthell, for Defendant in Error.

The brief of plaintiff in error fails to present a fair statement of the allegations of the petition. The negligence charged against defendant was in failing to maintain its yards in clean condition and in receiving plaintiff's sheep therein, the case was tried upon that theory. The cause was tried upon the theory and understanding by both that notice was communicated to defendant of the infection of its yards, which fact was a material and important element in the case. Questions not raised and preserved for review in the trial court will not be noticed on appeal. (Sherlock v. Leighton, 9 Wyo. 297; Turner v. Horton, 18 Wyo. 281; Jones v. Kepford, 17 Wyo. 468; Rainsford v. Messengale, 5 Wyo. 1, 8; Cosgriff v. Miller, 10 Wyo. 190, 232; City of Rawlins v. Jungquist, 16 Wyo. 403; Nelson v. Johnson, 23 Wyo. 319; Collins v. Fidelity Trust Co., 33 Wash. 136; Campbell v. U.S. 224 U.S. 99; Madden v. Hughes, 85 N.Y. 466, 78 N.E. 167; Van Dyke v. Grand Trunk Ry. Co., 84 Ver. 212.) Interest upon unliquidated claims is allowable where demands are based upon market values and susceptible of easy proof. (Kuhn v. McKay, 7 Wyo. 42.) Such is the case at bar. (M. K. & T. Co. v. Truskett, 104 F. 728; So. P. Co. v. Arnett, 126 F. 75.) It was established by the evidence that defendant was notified at the time the sheep were unloaded at Laramie that the shipper would hold the company responsible for damages. This was notice of plaintiff's claim. (Ga. F. & A. R. R. Co. v. Blish Co., 241 U.S. 190; St. L. I. M. & S. R. R. Co.. v. Starbird, 243 U.S. 592.)

Herbert V. Lacey and John W. Lacey, in Reply.

The contract here involved was for an interstate shipment and is controlled by Federal statutes. Its interpretation presented a federal question. The contract itself must govern. C. & O. Co. v. McLaughlin, 242 U.S. 142; Boyd v. King, 201 Mich. 476 was not in point, the question of notice not being involved. Emery & Co. v. Wabash R. R. Co., 166 N.W. 600; Baird v. the D. & R. G. R. R. Co., 162 P. 79, are not in point for the reason that in those cases it was shown that notice had been given and claims filed in accordance with the bill of lading. Hines v. Mason, 221 S.W. 861 is not in point as there the stipulation of the contract was complied with. The following additional authorities are submitted on the point that the lower court erred in allowing interest on an unliquidated claim for damages. (Kuhn v. McKay, 7 Wyo. 43; M. K. & T. v. Truskett, 104 F. 726; Mansfied v. R. R., 114 N.Y. 331; People ex rel v. Willcox, 10 N.E. 174; Faber v. City of New York, 118 N.E. 609, 610; Palmer v. Stockwell, 75 Mass. 237; Speed v. McMurray, 176 P. 506; Lower v. Shorthill, 176 P. 647; Thorndike v. Wells Memorial Ass'n, 146 Mass. 619; stipulations in bill of lading requiring filing of verified claim, etc.; C. & O. Ry. Co. v. McLaughlin, 242 U.S. 142; Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190; A. J. Phillips Co. v. Grand Trunk R. Co., 236 Y. S. 662; Hudson v. Chicago, St. P. M. & O. Ry. Co., 226 F. 38; Kidwell v. Oregon Shortline R. R. Co., 208 F. 1; Kleyg v. St. Louis Ry. Co., 203 F. 971; Olson v. C. B. & Q. R. R. Co., 250 F. 372; Baldwin v. C. R. I. & P., 156 N.W. 17; Smith Co. v. Oregon R. & N. Co., 117 P. 303; Kalina et al v. U. P. R. R. Co., 76 P. 438.)

Corthell, McCullough and Corthell, in Reply.

Additional authorities cited by plaintiff in error do not disclose any important matter. Mansfield v. R. R. Co. is a claim for prospective profits. In Speed v. McMurray there was no discussion of the rule and in Lower v. Shorthill there was uncertainty as to the value of the property. M. K. & T. v. Truskett is applicable on the question of interest since it involved shrinkage in weight and delay in marketing livestock. Since filing our brief the case of Wyoming Central Irrigation Co. v. La Porte, 26 Wyo. 250 has been decided and follows the Kuhn case. Keith v. Booth Fisheries Co., 27 Del. 218 is pertinant to the question here. Two later cases sum up the rule, Faber v. City of New York, 22 N.Y. 255; Demotte v. Whybrow, 263 F. 366. The question of interest is not a Federal question either in cases of contract or tort. (22 Cyc. 1477.) Cases cited on the question of notice and claim for damages, Kidwell v. Oregon Short Line R. R. Co., 208 F. 1, is inconsistent with the later decision of the Supreme Court in Georgia, F. & A. R. R. Co. v. Blish Co., 241 U.S. 190. It seems to be a sufficient answer to the contentions of insufficiency of notice, and on this branch of the case see Boyd v. King, 201 Mich. 476; King v. Boyd, 248 U.S. 572; Emery & Co. v. Wabash R. R. Co., 166 N.W. 600; Baird v. D. & R. G., 162 P. 79 and Hines v. Mason, 221 N.W. 861.

KIMBALL, Justice. POTTER, C. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

Plaintiff's sheep were loaded October 15, 1914, at Bitter Creek, Wyoming, for shipment to South Omaha, Nebraska, over defendant's railroad. On the morning of that day it was discovered by the United States Bureau of Animal Industry that other sheep which had been loaded at the same station a few days before were infected with scabies, and as the same yards and pens had been used in loading the infected sheep and plaintiff's sheep, it was considered that the latter had been exposed to the disease, and the Bureau required that they be dipped before going forward. When notice of this order was received at Bitter Creek, part, if not all, the sheep were in the cars, and as there were no facilities for dipping sheep at that place, permission was obtained to move them to Laramie, an intermediate station on their route, where they were unloaded and dipped under governmental supervision. This caused a delay of several days, after which they were reloaded and carried to their destination. The object of the suit was to recover the damage resulting from the dipping of the sheep and the delay in transportation. Counsel do not agree in their construction of that part of the petition which sets forth the defendant's negligence; and for the purposes of this decision we shall accept the interpretation of counsel for plaintiff, and assume that the petition charges that defendant was negligent both in failing to keep its loading yards and pens free from contagion, and in receiving plaintiff's sheep in the yards and pens after knowledge of such contagion.

As a second defense it was alleged that the plaintiff failed to comply with a provision contained in the shipping contract, which read as follows:

"Unless claims for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination, and before said stock has been mingled with other stock, such claims shall be deemed to be waived and the carriers and each thereof shall be discharged from liability."

The trial was to a jury, and the verdict for plaintiff. Defendant brings error.

It will be necessary to consider only one allegation of error, namely, the refusal to direct a verdict for defendant upon the issue raised by the second defense.

This was an interstate shipment and in determining the effect of the foregoing stipulation upon the liability of the defendant, we must follow the law as declared by the Federal Courts. All state laws, regulations and policies with reference to the validity of such contracts were superceded when Congress, by the Carmack amendment of June 29, 1906 (34 Stat. at L. 584, c. 3591) to the Hepburn Act of February 4, 1887 (24 Stat. at L. 379, c. 104), manifested its purpose to take full control of the subject of interstate commerce. (Adams Express Co. v. Croninger, 226 U.S. 491, 44 L. R. A. (N. S.) 257, 57 L.Ed. 314, 33 S.Ct. 148; Missouri, K. & T. R. Co. v. Harriman, 227 U.S. 657, 57 L.Ed. 690, 33 S.Ct. 397; St. Louis, I. M. & S. R. Co. v. Starbird, 243 U.S. 592, 61 L.Ed. 917, 37 S.Ct. 462.)

By the cases which arose as did this, before the passage of the...