Watson-Higgins Milling Co. v. Pere Marquette Ry. Co., WATSON-HIGGINS

• Decision Date: 05 June 1950
• Docket Number: No. 2,WATSON-HIGGINS,2
• Parties: MILLING CO. v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

Page 43

43 N.W.2d 43

328 Mich. 5

WATSON-HIGGINS MILLING CO. v. PERE MARQUETTE RY. CO.

No. 2.

Supreme Court of Michigan.

June 5, 1950.

Linsey, Shivel, Phelps & Vander Wal, Grand Rapids, for appellant.

Harrington, Waer, Cary & Servaas and Robert M. Waer, Grand Rapids, for appellee.

Before the Entire Bench.

BOYLES, Chief Justice.

The facts in this case are not in dispute. Plaintiff is engaged in the flourmilling business at Grand Rapids, and the defendant is a railroad common carrier. In May, 1944, plaintiff requested the defendant to spot a box car on plaintiff's siding, in which to ship flour. On May 24th the car was spotted at plaintiff's loading dock and on the same date examined for leaks and loaded with 900 100-pound sacks of flour. Uniform bill of lading was issued May 25th by the defendant company for shipment of the flour to a delivery point in Pennsylvania. Government inspectors there condemned the shipment for being bug and worm infested, and the shipment was returned to Grand Rapids where the flour was taken from the car, remilled, resacked, reloaded and shipped to another destination in Pennsylvania where it was then accepted and paid for.

Plaintiff, on May 23, 1945, filed a claim with the defendant for $1,108.63 loss by reason of the original shipment having been rejected. This claim was received by the defendant May 31, 1945, more than a year after the delivery of the original shipment to the railroad company and the issuing of the bill of lading. The railroad company denied liability on the ground that the claim had been filed more than 9 months after the shipment had been delivered to it. Thereupon plaintiff brought the instant suit, declaring in 3 separate counts, based on negligence, contract, and adding the common counts. In its answer the defendant relied on the defense that notice of the loss had not been given the company within 9 months. The defendant also asked for a judgment in its favor in the amount of $108 for unpaid freight bill.

The case was heard by the court without a jury. Plaintiff's theory was that the defendant was negligent in furnishing plaintiff a car infested with bugs, unsuitable for shipment of flour, knowing it was to be used for that purpose. The defendant relied upon the defense that plaintiff's failure to file a claim within 9 months barred recovery. The court held that the defense was good and entered judgment for the defendant for the unpaid freight bill, $108, and costs. Plaintiff appeals.

It is conceded that a condition in the uniform bill of lading under which the shipment in question moved was also a part of the railroad company's published tariffs, filed with the interstate commerce commission (consolidated freight classification No. 16, § 2-b), which provided that as a condition precedent to recovery plaintiff's claim must be filed with the defendant company within 9 months after delivery of the property to the carrier. Plaintiff claims that this provision which was printed on the reverse side of the bill of lading was in print so small that it could not be read by the average eye and that it was for all practical purposes illegible; and that for that reason it could not be relied upon as a defense to the claim. However, we need not consider that question when the same provision occurred in the published tariffs filed by the railroad company with the interstate commerce commission. The defendant company is an interstate common carrier by rail and the goods were shipped in interstate commerce. The published tariffs filed with the interstate commerce commission become part of the contract and bind the parties.

'The contract for carriage of an interstate carrier must be in accord with the rules and regulations governing interstate commerce. Pennsylvania R. Co. v. Marcelletti, 256 Mich. 411, 240 N.W. 4, 78 A.L.R. 923.

'The tariffs and schedules filed with the Interstate Commerce Commission become a part of the contract, and as such binding on the parties. To hold otherwise would open wide the door for unjust discrimination. * * * The relations of the shipper and carrier are contractual. * * * In order to prevent discrimination the law has provided that certain things shall be done in all shipments. ...