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Osterhoudt v. Southern Pacific Co.

47 A.D. 146 Court N.Y. App. Div. English

Delivered by Herrick, J.::

Contents

Majority

p. 146
Julius Osterhoudt, Respondent, v. Southern Pacific Company, Appellant.

Headnote

Bill of lading—provision in, as to notice of damage to goods consigned — obligatiortof the consignor to give reasonable notice — a failure to do- so need not be pleaded ■—evidence of injury to goods—proof that the defendant paid similar claim$ — delivery by one common aa/rrier to another is a delivery to the consignee.
A delivery of consigned goods by one common oarrier to another, pursuant to-the direction of the consignor, is, as to the first carrier, a delivery to the consignee.
’ In an action by the consignor against the first common carrier to recover damages for the latter’s negligence in permitting the consigned property to be injured, a memorandum consisting of a statement made to the consignor by the con-
- signee of the amount of the consigned .property which the latter found damaged when the property was delivered to it, is incompetent.
Evidence that the defendant paid similar claims presented to it by the plaintiff in a previous year is inadmissible.
A common carrier may, by agreement with a consignor, make its liability for loss or damage to the consigned goods conditional upon receiving notice of a. claim therefor within a certain time. '
Where several bills of lading, under which goods were shipped over a common carrier’s steamship line and railroad, provide that “in case any claim shall arise against said steamship for loss or damage to within merchandise while on the-voyage, such claim * * * shall be preferred at the office -of the steamer’s agent within three days after the delivery of the merchandise, failing in which, such loss or damage shall be deemed waived.and the steamship and owners discharged therefrom,” and that “all claims for loss or damage shall be made within ten days after delivery of goods, to be made to the agent of the railroad company nearest to the place of destination, in writing,” the question of the reasonableness of the conditions is not presented in an action by the con
p. 147
signor when it appears that he did not give notice to the defendant of his claims for damages as they accrued, but waited until nearly three months after the last shipment and more than ten months after the first and more than a month after the consignee bad presented a claim to him arising out of such damage, and that he then united all the claims without indicating the shipment to which the damage was done.
Semble, that the unreasonableness of the requirement as to notice, if established, would not relieve the plaintiff from giving the defendant any notice whatever, it being his duty to comply with the requirement to the extent that he reasonably could.
The defendant, in such a case, is not obliged to plead in his answer the plaintiff’s non-compliance with the provisions of the bills of lading in order to take ' advantage thereof, as such provisions are conditions precedent to the defendant's liability, compliance with which must be pleaded or proved by the plaintiff, and are not.in the nature of a Statute of Limitations.
Appeal by the defendant, the Southern Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 7th day of March, 1899, upon the verdict of a jury, and also from an order bearing date the 20th day of February, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
The defendant is a foreign corporation, created under the laws of the State of Kentucky, and is a common carrier for hire. The plaintiff’s complaint alleges that. at various times between the 1st day of April, 1893, and the 7th day of May, 1894, the defendant, for a reasonable compensation,‘agreed to be paid to it by the plaintiff, agreed safely to carry to New Orleans, in the State of Louisiana, and there deliver to the Rosetta G-ravel, Paving and Improvement Company, or order, certain goods and merchandise, the property of the plaintiff, consisting of bluestone, which the plaintiff then and there at said various dates delivered to the defendant, which received the same to transport and deliver in the manner aforesaid; that the defendant did not safely carry and deliver the said goods' and merchandise, but so negligently, carelessly and improperly loaded, stowed and carried the same that in the course of the transportation, for want of due care, and on account of its negligence and carelessness, much of the same was broken and destroyed so as to become valueless, to the damage of the plaintiff in the sum of $1,491.88.
p. 148
It appears that the defendant has a line of vessels by which it transports merchandise to New Orleans, Galveston and o.ther .southern cities. The plaintiff shipped his bluestone from Kingston to New York city, and it was there loaded upon the defendant’s vessels, and by them taken to Algiers, across the river from the main portion of the city of New Orleans. '
When it arrived at Algiers it was unloaded from the vessel upon flat cars ; these cars were placed upon a ferryboat, by means of which they were transported across the river and taken from the ferryboat to a railroad, which appears to have been owned or controlled by the defendant; this road in turn connected with a belt-line railroad, which apparently encircles New Oi'leans, and which is owned and .operated by the Illinois Central Railroad Company.
The cars containing the stone were delivered upon the tracks of the Illinois Central belt line, and thence taken either to the yard of the Rosetta Gravel, Paving and Improvement Company, or to the streets which that company was engaged in paving.
■ There was conflicting evidence as to the proper way of loading bluestone, both upon the vessels and upon the cars, to insure its safe transportation.
Further facts will be referred to in the opinion. The jury found a verdict in favor of the plaintiff for $1,349,, and from the judgment entered thereon, and from an order denying a motion for a new trial, made upon the minutes, the defendant appeals, to this court.
Maxwell Evarts and A. T. Clearwater for the appellant.
John J. Linson, for the respondent.

. I think it was practically undisputed upon the trial that the defendant delivered the stone consigned to the Rosetta Gravel, Paving and Improvement Company to the Illinois Central Railroad Company by the direction of said Rosetta Company, and that such stone was then transported either to the yard of said Rosetta Company or to the street or streets where it was engaged in doing work, and where said stone was required. The delivery, by the defendant to the Illinois Central Railroad Company, pursuant to such directions, was a delivery to. the consignee. '

There was evidence to show that the cars containing such stone

p. 149
remained for a considerable length of time upon the tracks of the Illinois Central Railroad Company; that there was at times an accumulation of sixty or more cars upon such tracks. And there was evidence from which the jury could have found that those cars were moved back and forth, from time to time, over the tracks of the Illinois Central Railroad Company before the stone was finally delivered by it to the Rosetta Company.

There was no evidence given by the plaintiff of the number of stones broken prior to their delivery upon the tracks of the Illinois Central Railroad Company. There was, however, a memorandum of the number of broken stone made by the Rosetta' Company at the time such stone was delivered either at its yard or upon the streets where it was being used. This memoranda consisted of a statement made to the plaintiff by the Rosetta Company of the stone it claimed had been broken. Its reception in evidence was objected to by the defendant upon the ground that it was incompetent, that it was not an original memorandum, being a copy of a copy of other memoranda, and upon the ground that it ivas res inter alios acta, and, furthermore, that there was nothing to indicate when the stone was broken. The objection was overruled and the memorandum received in evidence.

The memorandum so offered in evidence in fact constituted the basis of the plaintiff’s claim for damages. The plaintiff thereafter, as a witness, was permitted to give the value per foot of the stone mentioned in the memorandum as having been broken, and the valuation so. made up, with the interest thereon from the date of the presentation of the claim, constitutes the amount for which the jury rendered .their verdict.

I think the defendant’s objection to the reception of this memorandum in evidence should have been sustained. Assuming it to have been otherwise admissible in evidence, it was not evidence of the amount of stone broken at the time,.the defendant delivered it to the Illinois Central Railroad Company, which, as before stated, was a delivery to the consignee.

The plaintiff was also permitted to prove that he presented claims for breakage of stone shipped in the year 1892, and that such claims were paid. The questions eliciting this evidence were duly objected to by the defendant, and, upon such objections being made, the

p. 150
plaintiff’s counsel stated that the testimony was offered “ solely on the question of the defendant’s knowledge of the ownership of the goods in question,” whereupon the objections were overruled and the testimony received. After its. reception the defendant moved to strike it out upon the same ground upon which it had been objected to, which motion was denied.

This evidence was not pertinent to any fact In issue in the case there was no dispute as to the ownership of the property or as to the defendant’s knowledge of the ownership of the property in question; it was not one of the issues in the case. It should not have been .received in the first instance; it was also error to refuse to strike it out after it had been received.

There is, however, another question in the case still more serious than those heretofore referred to, upon which rests the plaintiff’s entire cause of action.

This question was raised in various forms by the defendant; by motion for a nonsuit, by requests to charge, and by exceptions to portions of the charge made. But it can be disposed of without setting forth or discussing the terms of these motions, requests and exceptions. ' •

The defendant’s, bills of lading contain the following provisions : “It is expressly stipulated that in case any claim shall arise against said steamship for loss or damage to within merchandise while on the voyage, such claim (in all cases to be based on the value of the articles at the port of shipment upon the date thereof) shall be preferred at the office of the steamer’s agent within three days after the delivery of the merchandise, failing in which,., such loss or damage shall be deemed- waived and the . steamship and owners discharged therefrom.” And “ all claims for loss or damage shall be made within ten days after delivery of goods, to be made to the agent of the Railroad Company nearest to the place of destination, in writing, and shall be estimated on the basis, of the value of the articles at the point of shipment upon the date thereof.”

• The defendant operates both a, steamship line and a railroad line or lines, and it will be observed that two classes of claims are provided for, one arising from loss or damage “ while on -the voyage,” which contemplates loss or damage to merchandise while on shipboard ; the other evidently contemplates loss or damage to goods

p. 151
while being transported over the lines of railroad; the first is a three days’ notice ; the other is a ten-day notice.

“As a general rule, the bill of lading given by a carrier to and accepted by the shipper of goods contains the contract for carriage, and in the absence of fraud, imposition or mistake, the parties are ooncluded by its terms as there expressed ” (Jennings v. G. T. R. Co., 127 N. Y. 438 , 446); and “ it is legitimate for a common carrier, by contract with the shipper, to provide for" a reasonable time within which notice of claim for loss or damage shall be given as a condition of liability and the manner of giving it.” (Jennings v. G. T. R. Co., 127 N. Y. 438 , 451.)

Such agreements are not against the policy of the law. They do not relieve carriers from- any part of their obligation as common carriers. They are bound to the same diligence, fidelity and care as they would be required to exercise if no such stipulation had been made. All that the stipulation requires is that the shipper shall make his claim in season to enable the carrier to ascertain the facts; .and it specifies what that time shall be. (Express Company v. Caldwell, 88 U. S. 264 , 272.)

Of the right to make conditions of this character there can now be no question; the only question that can arise is as to whether the condition is a reasonable one. As the case stands, I do not think we are called upon to pass upon the question as to whether the time for giving notice and making claims specified in the defendant’s bills of lading was reasonable or not; it had a right to specify some time within which such notice of claim should be made, and if it required such notice to be given within an unreasonably short time it would not relieve the shi2)per from giving any notice whatever of such claims, but it would still require him to give notice of claims within a reasonable time, that is, he must at least comply with the requirement to the extent that he reasonably can. )(Matthews v. American Central Ins. Co., 154 N. Y. 449 , 463.)

The obvious 2)urpose of inserting such conditions in the contract between parties is that the claims shall be made while the transaction is still fresh and easily to be investigated, and it becomes of still more importance where the business between the jjarties consists of a series of transactions, as the one now under investigation, and where notice of damage committed or injury received during

p. 152
one transaction will enable the carrier to take precautions to prevent its recurrence in.the future.

The .plaintiff says he presented his claims for breakage about March 7, 1894; the defendant says none was presented at any time before the commencement of the suit; but assuming the statement of the plaintiff to be correct, I do not' think there was a reasonable compliance upon his part with the requirements of the contract. The shipment of the stone commenced during' the early part of April,-1893 ; the bills.of lading introduced in evidence were all for the year 1893, being some thirty-two in number, representing that number of cargoes. Instead of giving notice from time to time of the damage done tó the several cargoes, if any, the plaintiff waited until nearly three .months after the last shipment, and .more than ten months after the first, and more than a month after the presentation of the claims to him by the Rosetta Company ; and then the claims were all bunched together without anything to indicate to what shipment or cargoes or under what bill of lading the damage was done. ' To hold that such a presentation of claims is á reasonable compliance with the terms of the contract requiring presentation of claims would be to entirely defeat the purpose of such , requirement.

The plaintiff, however, contends that- the defendant cannot avail itself of the plaintiff’s non-compliance with such conditions in the contract, because it did not plead it in its answer. I do not think it was necessary for it to do so.

Compliance with the conditions of the contract were conditions precedent to the defendant’s liability, and should have been pleaded or proved by the plaintiff.

Requirements of notice of claims or their presentation within a. specified time are common both by statute and by contract, and whether imposed by statute or by contract, must be pleaded by the party seeking to recover. .

“It is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law., the complaint must, by the settled rules of pleading, state évery fact essential to the cause of, action.” (Reining v. City of Buffalo, 102 N. Y. 308 , 312.)

p. 153
If the plaintiff had brought his action upon the written contract or contracts in this case, it would have been necessary for him to have alleged compliance upon his part with all the conditions in it or them upon his part to be performed, or some valid reason for non-performance.

“ It is essential to the legal statement of such a cause of action that it shoúld show an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or * * * some adequate excuse for non-performance.” (Bogardus v. New York Life Ins. Co., 101 N. Y. 328 .)

These views are not necessarily in conflict with the case of Westcott v. Fargo ( 61 N. Y. 542 ).

There the condition was' that the company should not lie liable “ unless the claim therefor shall be made, in writing, within thirty days from the accruing of the cause of action.” The court there said, “ The clause in question assumes that the plaintiff has a cause of action, which has already accrued to him before the thirty days' ■commenced to run. In that view the provision is in the nature of a statute of limitations and should have been set up in the answer. As that was not done, the defendant cannot avail himself of it.”

In this case the conditions do not assume that the plaintiff has a, cause of action, or that such cause of action has accrued. It refers to claims which may or may not constitute a cause of action, notice of which is to be given in order, amongst other things, that the defendant may ascertain whether there is a cause of action.

In the case of The Express Company v. Caldwell ( 88 U. S. 264 , 272) the court says of a similar condition or stipulation in the contract, that it clearly is not to be regarded as a statute of limitations.

I can see no distinction in principle between the notice or presentation of claims here provided for, and the notice required in insurance policies, or the notice or presentation of claims against municipal corporations, hereinbefore referred to, and which are held to be conditions precedent which should be pleaded.

In this case the plaintiff did not bring his action upon the written contract or contracta, containing the conditions, but alleged a contract or agreement in general terms, which, so far as the complaint showed, might or might not be in writing.

p. 154
The answer alleged a written contract, a copy of which is attached to and made part of the answer, and that the defendant received and transported the plaintiff’s property pursuant to such contract and subject to its conditions.

Upon the trial it appeared that the property was shipped pursuant to such written coiitracts. It then became incumbent upon the plaintiff to prove that he had complied with the terms and conditions of such contracts- just as much as it Would have been had he originally declared upon such ■ contract in his complaint; this he failed to do; neither did hé show á substantial compliance.

It follows from these views. that' the plaintiff is not entitled to recover.

For all these reasons the judgment should be reversed and a new trial grantéd, costs to abide the event. ",

. All concurred.

Judgment and order reversed and a hew trial granted, costs to abide the event.

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