Schaff v. Ike Exstein Bro.

270 S.W. 589, 1925 Tex. App. LEXIS 187

• Court: Court of Appeals of Texas
• Decided: March 5, 1925
• Docket: No. 3029.
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above). The appellant pleaded, in bar of the suit, that the appellees had not made a timely claim in writing for failure to make delivery of the three cases of shoes, in accordance with the stipulation of the bill of lading.

The stipulation in the bill of lading, providing for the making of claim for loss or damage within a certain time, pursuant to federal act, became the lawful condition upon which the shoes were received and forwarded by the carriers, and was binding alike upon the carrier and the consignee or shipper. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948; Ry. Co. v. McLaughlin, 242 U. S. 142, 37 S. Ct. 40, 61 L. Ed. 207, and other cases. As stated in the Case of Tel. Co. v. Esteve Bros. & Co., 256 U. S. 566, 41 S. Ct. 584, 65 L. Ed. 1094:

“The limitation of liability was an inherent part of the rate. The company could no more depart from it than it could depart from the amount charged for the service rendered.”

Further, as stated in the case of Blish Milling Co., supra:

“It is urged, however, that the carrier in making misdelivery converted the flour and thus abandoned the contract. But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses'at which the act was aimed.”

And, as the stipulation as to notice “is not,” quoting from Tel. Co. v. Woods (Tex. Civ. App.) 266 S. W. 179:

“In the nature or legal status of a simple contract of the parties, subject to their will and abrogation, unaffected by public concern or law, consequently the company could not waive the condition, and estoppel would be unavailing.”

Accordingly, it appears clear that it devolved upon appellees to actually make and present a written claim, either to the initial or to the delivering carrier within the stipulated time, and their failure to do so would deprive them of any right to recover in this case.

It appears appellees knew at once of the loss, and the exact amount of it, and had abundant opportunity to make a timely written claim therefor, either to the Mallory Steamship Company or to the Missouri, Kansas & Texas Railway Company of Texas, the delivering carrier, and instead erroneously made their claim, in the first instance, against the St. Louis, San Francisco & Texas Railway Company, a carrier having no connection with or relation to the shipment or transportation. After the claim so made to the St. Louis, San Francisco & Texas Railway Company had been investigated by that company, and it had notified the appellees of the refusal of same because the “claim had been filed with the wrong railway company,” then the appellees made claim against the appellant company, hut such claim was made at a date too late to be in compliance with the terms of the stipulation. Therefore it is .evident that the appellees are barred of the right to sue for the loss, unless the sp'ecial facts became a claim in writing in substantial compliance with the stipulation.

The written notation by the railway agent upon the freight bill and. expense bill that the shipment checked three cases short, in connection with the verbal notice given by the appellees, did not constitute in effect a claim for loss, made to the appellant, the de livering carrier, as has been decided. Ry. Co. v. Overton (Tex. Civ. App.) 178 S. W. 814; Taft & Van Dyke v. Atlantic Coast Line R. Co., 93 S. E. 752; Johnson v. Ry. Co. (Mo. App.) 187 S. W. 282, and other cases. Nor was it sufficient that, in connection with the verbal notice given by the appellees, the railway agent himself had knowledge of the loss. Ry. Co. v. Starbird, 243 U. S. 592, 37 S. Ct. 462, 61 L. Ed. 917. Por, as announced in the cases, proof of the bare fact of actual knowledge by 'the carrier of the loss, or even conversion of the goods, is insufficient, and estoppel by waiver of notice on the carrier’s part is unavailing. Likewise, the letter written by the local agent of the St. Louis, San Francisco & Texas Railway Company to the Mallory Steamship Company, in connection with the filing of the claim in the first instance with the agent of this railway company, could not be regarded as equivalent in its legal effect to a substantial compliance with the stipulation or the law authorizing the stipulation. For, according to the intention of the stipulation, the claim is required to emanate from a given person, the claimant himself, or his authorized agent, and to 'be made directly to either the “originating ■ or delivering carrier,” through its authorized agent; and it was not within the authority of the parties to modify the terms of the bill of lading.

It is the general rule that, where the parties have agreed upon a particular method of doing a thing, as that the claim “in writing” shall be timely made by a claimant himself or his authorized agent “to the originating or delivering carrier” through its authorized agent, the particular mode must be' pursued. As a legal consequence anything less than that is not a compliance. As appears the claim was made by the appellees direct to the St. Louis, San Francisco & Texas Railway Company, which was not a carrier having any relation to the particular shipment-or loss. And the letter in evidence, as agreed, “was written by the agent of the St. Louis, San Francisco & Texas Railway Company in the course of investigation of said claim filed with the said company by the, plaintiffs.” It may be true, as determined by the court, that the steamship company “had notice of the claim by the letter of the railway company,” in the meaning that the letter informed the steamship company that appellees had filed a claim against the St. Louis, San Francisco & Texas Railway Company for the loss of the three cases of shoes, stating the value of the same and that they were demanding payment for the loss. But it is clear that it was not the intention and purpose of the parties to make that claim so filed a claim against the steamship company and to accomplish the purpose Qf compliance with the bill of lading, and that the letter did not purport or intend to forward and lodge the claim made .with the originating carrier, the steamship company.

And in no wise was the agent of this railway company the agent of the steamship company in respect to the shipment or the loss or the adjustment of the claim. The railway agent was acting solely as the agent of this railway company, both in receiving the claim, and in pursuing the investigation of the same. His mere possession of the claim in the course of investigation did not confer authority upon, him to act for the steamship company, another distinct principal. It is clear, too,’ that the railway agent was not by purpose and intention undertaking to act as the agent of the appellees and for their benefit in receiving the claim in the first instance and corresponding concerning it. The railway agent, in such circumstances, was in a position of and was actually representing interests adverse to appellees. He was acting solely as agent of the railway company, and did not pretend or assume to be acting for, appellees. Upon no other legal ground than agency could the point rest; and, that not existing, there, results a failure on appellees’ part to make claim in writing within the time stipulated “to the originating carrier.”

The judgment is reversed, and judgment is here entered in favor of the appellant, with costs of both trial courts and of this appeal.