Home/Michigan Supreme Court/Central Wholesale Co. v. Chesapeake & Ohio Railway Co.

Central Wholesale Co. v. Chesapeake & Ohio Railway Co.

114 N.W.2d 221, 366 Mich. 138
Michigan Supreme Court·Decided March 19, 1962·No. Docket 55, Calendar 48,881·Published·Cited by 8 cases

Opinion

Black, J.

This case presents the same question as was recently considered and decided in Warren Alloy Co. v. Blair Transit Co., 363 Mich 358. The facts, however, are decisively different. In the Warren Alloy Case the plaintiff consignee, following joint signature of a corresponding inspection report, promptly wrote the defendant carrier that “We are filing a claim against your company for damages incurred in transit.” The letter referred to the report as showing “the extent of such damages.” Here the plaintiff consignee did nothing, from and after like signature of a similar report, until expiration of some 2-1/2 years. By that time the 9-month limitational period the parties had agreed upon— in the bill of lading—had run its legal course.

The present plaintiff consignee sued the present defendant carrier for damages arising from delivery to it, by the carrier at Flint, of certain carload shipments of vegetables and fruits which had been damaged or spoiled during transit. We. assume, from the time of year and nature of the shipments, that defendant was not the initial carrier and that each shipment originated in Florida or California.

*140 The following allegation of plaintiff’s declaration —which defendant admitted subject to its special defense of limitation—presents fully the factual background of the issue before us:

“That between the year December 26, 1951 and January 22, 1952, the defendant delivered to the plaintiff approximately 35 shipments in number under the terms and regulations above set forth and the terms and conditions of certain bills of lading consigned to the plaintiff as consignee of the shipper named therein, consisting of vegetables and fruits. That said shipment of fruits and vegetables were delivered to the defendant and/or its connecting carrier or carriers in good condition, but were received by the plaintiff in damaged and/or spoiled condition. Details of the nature and degree of damage on each shipment were heretofore presented and are fully within the knowledge of the defendant, its agents and representatives.”

The case was submitted below and comes here on a carefully restricted stipulation of facts. No surrounding and possibly relevant circumstances affecting the issue, as in some of the authorities we are to consider, and no proof of custom or trade usage, have been made to appear. The parties manifestly desire a precedentially unconditional determination of the legal effect of the “joint report,” portrayed later in this opinion, as constituting or not constituting the filing of a claim, in writing, within meaning of the limitational clause of section 2(b) of the uniform bill of lading. Said section 2(b) reads as follows:

“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 9 months after delivery of the property (or, in case of export traffic, within 9 *141 months after delivery at port of export) or, in case of failure to make delivery, then within 9 months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within 2 years and 1 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 he paid.”

Now for the essential stipulated facts:

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Central Wholesale Co. v. Chesapeake & Ohio Railway Co., 114 N.W.2d 221, 366 Mich. 138 (Mich. 1962).

114 N.W.2d 221 (Central Wholesale Co. v. Chesapeake & Ohio Railway Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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