Strommer v. Chicago, Milwaukee & St. Paul Railway Co.

South Dakota Supreme Court

Strommer v. Chicago, Milwaukee & St. Paul Railway Co.

161 N.W. 346, 38 S.D. 368, 1917 S.D. LEXIS 25

CourtSouth Dakota Supreme Court

DecidedFebruary 16, 1917

DocketFile No. 3881

StatusPublished

This text of 161 N.W. 346 (Strommer v. Chicago, Milwaukee & St. Paul Railway Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Strommer v. Chicago, Milwaukee & St. Paul Railway Co., 161 N.W. 346, 38 S.D. 368, 1917 S.D. LEXIS 25 (S.D. 1917).

Pincite

Opinion

Mtc'COY, J.

This is an appeal from a judgment in favor of plaintiff and against the defendant, and from an order denying appellant’s motion for new trial. The cause originated in justice court. There are three causes of action alleged in plaintiff’s complaint: (1) That the defendant, a public service railway corporation, as a common carrier, negligently destroyed and lost certain personal property consisting of a box of fruit, three sacks, and 200 pounds of oats of the value of $7.88, owned by plaintiff and delivered into the possession of defendant, on the 30th day of August, 1912, to be shipped and transported as freight from Weg-dahl, Minn., to Red Elm, S'. D. (2) That on or about the 15th day of March, 1913, plaintiff, aifc Wegdahl, Minn., being the owner of a car of emigrant movables containing live stotck, delivered the same tO' defendant for immediate shipment to' Red Elm, S. D., prepaying the freight thereon, consigned to himself and accompanied by him; that through the negligence and carelessness of defendant, the said shipment and delivery of said car was delayed and held in transit an unreasonable length of time, and did not reach its destination until eleven days after its receipt, by reason of which plaintiff was 'damaged in the sum of $25. (3) that the said claims mentioned in the -first and second causes of action were not adjusted .or paid within the time limit of three months provided by law, and that plaintiff is entitled to a reasonable attorney’s fee of $50, and 10 per cent, damages upon the said sums specified. Defendant answered, denying the allegations of said complaint, except as otherwise admitted. Defendant also in[370]*370terpose'd the answer and alleged as a defense that on or about the 30th day of August, 1912, the plaintiff entered into a contract with defendant for the shipment of certain freight alleged in the complaint from Wegdahl, Minn., to Red Elm, S.. D., which contract provided in substance that any claim for injury or damage or .loss of said freight should he made in writing’ within four months after such damage or injury, and within four months after a reasonable time in which to make delivery, and that by the terms of said contract the defendant should not 'be liable unless such claim in writing- be so presented; that plaintiff wholly failed-to present any -claim in writing- until- the iofch day of October, 1913, and that by the terms of said dcntraidt defendant is not liable to plaintiff -upon said shipment. A like defense was ‘also interposed to the second alleged cause of a-ctio-n. The defendant now urges the insufficiency of the evidence to sustain a verdict. The contract in question under which the shipments were made contained the following provision:

“Claims for loss, damage or delay must be made in writing to the carrier at the point -of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make deliver)-, then within four months -after a reasonable time for delivery -has elapsed. Unless -claims are so made the carrier shall not be liable.”

The evidence in this ¡case shows that plaintiff first filed a written claim with the defendant’s agent at Dupree, S. D., on October 10, 1913; that plaintiff bad some -conversation- m relation to the first shipment with the agent of defendant at Wegdahl, and at the request of the agent at Wegdahl plaintiff wrote to the defendant’s agent at Faith, S. D. There, is no testimony that plaintiff ever mailed a letter or -claim to- -defendant’s a-gent at Faith, or elsewhere, or otherwise delivered such letter o-r claim. There is mo- -testimony that plaintiff ever in- any manner -made any -written or other presentation' of claims to agents of defendant at Weg-d-ahl or Red- Elm.

[1-3.] We are of the view that this was a contract which the parties -had the right to make- in relation to- -interestate shipments; that the filing of -a claim- with an agent at another station than at the point of -origin or destination is not in compliance with the contract; that an agent at -one station lias no authority to bind [371]*371the company on account of business to be transacted at another station, unless specifically authorized so to do, or unless the act of such agent shall .thereafter have been ratified by the company. M. K. & T. Ry. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; McManus v. C. G. W. Ry., 156 Iowa, 359, 136 N. W. 769; M., K. & T. Ry. v. Eynn, 161 Pac. 1058. We are of the opinion that there was no evidence offered on the part of plaintiff sufficient to sustain the verdict in this case.

The judgment and order appealed from' are reversed, and the cause remanded for further procedure consistent with this opinion.

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Mtc'COY, J.

This is an appeal from a judgment in favor of plaintiff and against the defendant, and from an order denying appellant’s motion for new trial. The cause originated in justice court. There are three causes of action alleged in plaintiff’s complaint: (1) That the defendant, a public service railway corporation, as a common carrier, negligently destroyed and lost certain personal property consisting of a box of fruit, three sacks, and 200 pounds of oats of the value of $7.88, owned by plaintiff and delivered into the possession of defendant, on the 30th day of August, 1912, to be shipped and transported as freight from Weg-dahl, Minn., to Red Elm, S'. D. (2) That on or about the 15th day of March, 1913, plaintiff, aifc Wegdahl, Minn., being the owner of a car of emigrant movables containing live stotck, delivered the same tO' defendant for immediate shipment to' Red Elm, S. D., prepaying the freight thereon, consigned to himself and accompanied by him; that through the negligence and carelessness of defendant, the said shipment and delivery of said car was delayed and held in transit an unreasonable length of time, and did not reach its destination until eleven days after its receipt, by reason of which plaintiff was 'damaged in the sum of $25. (3) that the said claims mentioned in the -first and second causes of action were not adjusted .or paid within the time limit of three months provided by law, and that plaintiff is entitled to a reasonable attorney’s fee of $50, and 10 per cent, damages upon the said sums specified. Defendant answered, denying the allegations of said complaint, except as otherwise admitted. Defendant also in[370]*370terpose'd the answer and alleged as a defense that on or about the 30th day of August, 1912, the plaintiff entered into a contract with defendant for the shipment of certain freight alleged in the complaint from Wegdahl, Minn., to Red Elm, S.. D., which contract provided in substance that any claim for injury or damage or .loss of said freight should he made in writing’ within four months after such damage or injury, and within four months after a reasonable time in which to make delivery, and that by the terms of said contract the defendant should not 'be liable unless such claim in writing- be so presented; that plaintiff wholly failed-to present any -claim in writing- until- the iofch day of October, 1913, and that by the terms of said dcntraidt defendant is not liable to plaintiff -upon said shipment. A like defense was ‘also interposed to the second alleged cause of a-ctio-n. The defendant now urges the insufficiency of the evidence to sustain a verdict. The contract in question under which the shipments were made contained the following provision:

“Claims for loss, damage or delay must be made in writing to the carrier at the point -of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make deliver)-, then within four months -after a reasonable time for delivery -has elapsed. Unless -claims are so made the carrier shall not be liable.”

The evidence in this ¡case shows that plaintiff first filed a written claim with the defendant’s agent at Dupree, S. D., on October 10, 1913; that plaintiff bad some -conversation- m relation to the first shipment with the agent of defendant at Wegdahl, and at the request of the agent at Wegdahl plaintiff wrote to the defendant’s agent at Faith, S. D. There, is no testimony that plaintiff ever mailed a letter or -claim to- -defendant’s a-gent at Faith, or elsewhere, or otherwise delivered such letter o-r claim. There is mo- -testimony that plaintiff ever in- any manner -made any -written or other presentation' of claims to agents of defendant at Weg-d-ahl or Red- Elm.

[1-3.] We are of the view that this was a contract which the parties -had the right to make- in relation to- -interestate shipments; that the filing of -a claim- with an agent at another station than at the point of -origin or destination is not in compliance with the contract; that an agent at -one station lias no authority to bind [371]*371the company on account of business to be transacted at another station, unless specifically authorized so to do, or unless the act of such agent shall .thereafter have been ratified by the company. M. K. & T. Ry. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; McManus v. C. G. W. Ry., 156 Iowa, 359, 136 N. W. 769; M., K. & T. Ry. v. Eynn, 161 Pac. 1058. We are of the opinion that there was no evidence offered on the part of plaintiff sufficient to sustain the verdict in this case.

The judgment and order appealed from' are reversed, and the cause remanded for further procedure consistent with this opinion.

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161 N.W. 346, 38 S.D. 368, 1917 S.D. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strommer-v-chicago-milwaukee-st-paul-railway-co-sd-1917.

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