Union Pacific Railroad Co. v. Pacific Market Company

• Citation: 206 P. 143,28 Wyo. 461
• Decision Date: 20 April 1922
• Docket Number: 957
• Parties: UNION PACIFIC RAILROAD CO. v. PACIFIC MARKET COMPANY
• Court: United States State Supreme Court of Wyoming

206 P. 143

28 Wyo. 461

UNION PACIFIC RAILROAD CO. v. PACIFIC MARKET COMPANY

No. 957

Supreme Court of Wyoming

April 20, 1922

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

On petition for rehearing. For former opinion, see 27 Wyo. 501 200 P. 108.

Rehearing denied.

Herbert V. Lacey, and John W. Lacey, for plaintiff in error.

Corthell McCullough & Corthell, for defendant in error.

POTTER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

POTTER, Chief Justice.

The defendant in error has filed a petition for rehearing in this case, specifying the following points: (1) That the court erred in holding that the presentation of the claim was not a sufficient compliance with the bill of lading; (2) that the court erred in remanding the cause with directions to enter a judgment for the defendant.

With reference to the first point, it is contended, as upon the previous hearing, that the case of Kidwell v. Oregon S. L. R. R. Co., 208 F. 1, 125 C. C. A. 313, cited and quoted from in our former opinion, is in conflict with and substantially overruled by the case of Georgia F. & A. R. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. That contention was considered in the former opinion wherein it was stated that we did not think that there was any conflict between the fundamentals of the two decisions, except possibly with respect to the statement in the Kidwell case that information that a claim will be presented "is not to present a claim for loss, damage or detention." And as to that it was said that we did not place any importance upon the mere fact that the claim in this case was spoken of in the future tense "for the use of any other tense with reference to a claim which existed only in anticipation would have been absurd." But we did accept the Kidwell case as an authority upon the proposition that mere information to the agents of the company along the line of the route of the shipment, and before the cattle had reached their destination, that on account of side-tracking and bad handling of the cattle, the shipper was going to put in a claim for damages, and like information to the agent at destination, was insufficient as a presentation of an oral claim (a written claim not being required) since it was too indefinite as to the character of the claim. And in that respect our view was and is that the case is not in conflict with the Blish case. In the Blish case, as explained in Calumet & Hecla M. Co. v. Delaware L. & W. R. Co., 198 A.D. 348, 190 N.Y.S. 410, the claim was in the form of a telegram (and therefore in writing) "and specifically stated that the shipper made claim against the Railroad for the entire contents of the car at the invoice price," and therefore "left nothing unsaid except the market value of the damaged goods." And in the same case the court also distinguished the Starbird case, 243 U.S. 592, 243 U.S. 592, 37 S.Ct. 462, 61 L.Ed. 917, a case again relied on here, by stating that while the evidence did not state the value of the damaged peaches, or the exact amount of the claim, "the shipper otherwise made claim for loss and damage in no uncertain terms." And in the Starbird case, notice was all that was required, since the provision of the bill of lading was, "claims for damages must be reported by consignee in writing," with reference to which the court said that such notice puts in permanent form the evidence of an intention to claim damages and will serve to call the attention of the carrier to the condition of the freight, and enable it to make such investigation as the facts of the case required while there is opportunity to do so, and the bill of lading contained no stipulation requiring a specific claim to be filed within the time specified fixing the amount of damages to be claimed.

It is also contended that the case of Olson v. C. B. & Q. R. Co., 250 F. 372, 162 C. C. A. 442, cited in our former opinion, is not in point, for the reason that the statement that the written notice was given before the damage was sustained was unnecessary since the notice was not a claim for damages at all, but merely an indirect demand to get the cattle on feed at a named station. In that case it appeared that during the transportation of cattle, the shipper had telegraphed the railroad superintendent from Raton, N. M., "Bad run all the way from Albuquerque snow storm here now impossible unload at Raton cattle will chill to death up to you and company get cattle on feed La Junta." But notwithstanding that telegram the cattle were unloaded at Raton where several of them died. With respect to the request or demand that the cattle be not unloaded at Raton but taken to La Junta, the telegram is not unlike the protest in this case against the proposed dipping of the sheep and the request or demand that they be released or reloaded for transportation to destination. And in that respect counsel's contention that the telegram was not a claim for damages at all would seem to apply with much the same force to the facts in this case relied upon to show the presentation of a claim, notwithstanding that in this case it was stated by the shipper that if the sheep were dipped there would be a claim for damages. And what was said in the Olson case concerning the telegram aforesaid we think is applicable here. The further point made with reference to that case, that the court's statement that the telegram was sent and received before the damage was inflicted was unnecessary and not in point, does not agree with our understanding of that decision. It was stated in the opinion in that case that counsel had argued that said telegram, together with the fact that the transportation agent was present at Raton when the cattle arrived there and saw their condition, the fact that oral notice for claim for damage was given to the agent of the railroad at Billings, and the fact that the company had acknowledged receipt of a subsequent written notice, though given later than the time specified in the contract, waived and rendered futile the contract provision for written notice, within the time prescribed. Then, discussing the point as to the facts upon which the contention was made other than the sending of the telegram, it was held that the evidence of oral notice was incompetent and did not amount to a waiver of the contract provision for a written notice, and that the company could not and did not waive its contract for a written notice. Following which, the court disposed of the contention as to the telegram by stating that it was sent and received "before the damage was inflicted;" and then said further that the knowledge of the situation by the freight transportation agent was by no means the equivalent of a notice of the shipper's claim for damage, that the extent of the damage was probably not then known, nor was it known that the shipper would claim any damages, nor could any one perceive what part of the damages, if any, was chargeable to the railroad company. We think clearly that what the court said about the time when the telegram was sent and received is not to be understood as a mere makeweight, but as one of the substantial grounds for the decision.

The cases of Boyd v. King, 201 Mich. 436, 167 N.W. 901, and Emery v. Wabash R. Co., 183 Iowa 687, 166 N.W. 600, cited for our consideration, are clearly distinguishable, we think, from the case at bar, for the reason that in those cases the damage had occurred, and the only thing, if any, left uncertain when the notice was given or the claim made was the amount of the damage. And a recent case decided in Massachusetts, which has come to our attention, is also distinguishable for the same reason, --Fisk R. Co. v. N. Y., N. H. & H. R. Co., 240 Mass. 40, 132 N.E. 714.

Several shipments of strawberries were involved in the Emery case. In the case of each shipment there was a joint inspection at destination by representatives of both parties and a report showing the damaged condition of the berries, and on the same day or the following day, the shipper delivered to the agent of the railroad company a written notice to the effect that it would file a claim for damages sustained, describing the shipment, the car, the place of shipment and destination, and date of arrival, and referring to the inspection report, two of such notices stating that the claim would be filed in due time. A more formal claim was later filed as to three of the shipments, but not within four months. The notice in each case was held a sufficient compliance with the provision of the bill of lading for filing claims in writing within four months, following the Blish case which it was said "clearly determined" the question. No such situation is presented by the facts in the case at bar.

In Boyd v. King, supra, the shipment was of a carload of livestock consigned from Fremont, Mich., to Buffalo, N. Y. Owing to quarantine regulations the shipper was informed by the agent at shipping point that the car could not be routed through Canada, as the latter desired, but could be routed by Plymouth, Mich., and Toledo, over the Lake Shore, to which the shipper agreed. The stock was unloaded at Plymouth by the carrier, when it was found that it could not be reloaded for destination, and the shipper was asked for instructions. He telegraphed the carrier, through agent at shipping point, to forward the car to Buffalo at once or contents of car belong to railroad. The same day he was informed that the car could not be reloaded because of quarantine in the county where the stock had been unloaded. He then gave agent to forward a telegram instructing the sale of the stock at Detroit (same county, as we understand), and that the carrier, naming it would be held for all...