Lasky v. Southern Express Co.

1. Carrier. Loss of goods. Oral notice of loss. Waiver of written fiemand. Bill of lading. Stipulations. If a carrier accept without protest and deal with a verbal demand of payment for loss of goods, it thereby waives a stipulation in the contract of shipment requiring claims to be made in writing. 2. Same. Actions. Contract limitation of suits. If a shipping contract limit the time within which suit may be brought for loss of goods the time must be reasonable and the carrier must promptly deny liability so as to advise the shipper that suit will be necessary. :3. Same. Nature of contract. Stipulations on the back of shipping contracts relative to claims for losses and limiting the time for beginning suits therefor are upheld by the courts as reasonable regulations rather than as contracts in the true sense. 4. Same. Facts of case. Waiver. Facts examined and adjudged to show a waiver by the carrier of stipulations on the bill of lading requiring a claim to be made in writing within ninety days and suit to be brought within one year from the loss.

Erom tbe circuit court of Monroe county. Hon. Eugene O. Sykes, Judge. Lasky, appellant, was plaintiff in tbe court below, and tbe Express Company, appellee, a common carrier, was defendant there. Erom á judgment in-defendant’s favor plaintiff appealed to tbe supreme court. Tbe plaintiff delivered to tbe Adams Express Company, a common carrier, in November, 1903, at Parkersburg, West Virginia, a consignment of bats to be carried to Aberdeen, Mississippi, and there to be delivered to plaintiff. Tbe contract of carriage between plaintiff and tbe Adams Express Company, evideuced by tbe bill of lading contained, endorsed on its back, the-following clauses: “(2) If the express company has not an agency at the point of destination, it shall carry the property to its agency nearest or most convenient thereto, and there notify the consignee, or deliver the property to some other carrier to continue the transportation. The Adams Express Company shall not be liable for loss or damage occurring after such delivery. “(6) The express company shall not be liable for loss, damage, or detention of said property unless a claim therefor shall-be presented to it in writing within ninety days from this date,, with this contract, or a copy thereof, annexed; nor shall the company be liable in any suit to recover for the loss, damage, or detention of said property, unless the same shall be commenced within one year after such loss, damage, or detention shall have-occurred, and not afterwards. “(9) The terms and conditions of this contract shall apply to any forwarding or return of said property, and shall enure-to the benefit of every carrier to whom the same may be intrusted to complete the transportation.” The Adams Express Company, having no agency ¿t the point of destination, delivered the goods to the Southern Express Company, at St. Louis, Missouri, for carriage from St. Louis to-Aberdeen. Three days after date of the shipment the goods-were delivered to plaintiff at his store in Aberdeen, but- a shortage in the number of hats being discovered, he promptly, within three days, called the attention of the Southern Express Company’s local agent at Aberdeen to- the same, and turned over to-him the original invoice and bill of lading and made oral claim for the loss of the missing hats, amounting to $66.50. The-plaintiff, subsequently, and within ninety days from date of the bill of lading, made repeated oral demands for settlement of the loss, and received from the local agent numerous promises to-take up the matter with the superior officers of his company; and the express agent informed plaintiff, that he had propounded a claim to the proper department of his company for the alleged loss, and that as soon as the superintendent’s office was heard from the claim would be adjusted. In this way, plaintiff was put off from time to time, and kept constantly in expectation of a settlement by the local express agent’s statements. Finally, in July, 1906, nearly three years after the loss •occurred, this suit was begun for the loss and from a judgment in plaintiff’s favor in the justice of the peace court'the defendant appealed to the circuit court. The circuit court, after hearing the evidence for the plaintiff, the bill of lading being a part •of it, on motion of the defendant, excluded the evidence and directed a verdict in favor of the defendant because the suit was not begun within the period of one year from date ..of the loss, ■and because no claim in writing was presented to the express •company within ninety days from date of the contract; Code 1906, § 3127, prescribing that the statutory period of limitations of actions shall not be changed by contract, not having become operative until October 1, 1$06, after the date of the hill of lading. When the agent of the express- company accepted appellant’s verbal claim for loss of the hats, without objection, and undertook to deal with the claim, notifying appellant that he would write to the company’s headquarters about the matter and would settle with appellant as soon as he could hear from his superior officers, such action constituted a waiver of the requirement in the printed contract that all claims should be made in writing to the company. It is undisputed that appellant, at the request of the company’s local agent, delivered to the agent the express •company’s receipt and the original invoice of the goods for the purpose of settlement, and that the agent put in a claim in behalf of appellant for settlement, and that appellant deferred instituting suit or otherwise pressing his claim solely because of "the conduct and promises of the agent. Certainly the foregoing •constituted a waiver by the company of the strict requirements of the printed contract. Southern Express Company v. Stevenson, 89 Miss., 233, 42 South., 670; Railroad C°• v. Bogará, 78 Miss., 15, 27 South., 879. The agent of the express company held such relationship toward his employer, the appellee, as that his acts bound the ■company. Phoenix Ins. Co. v. Bowdre, 67 Miss., 620, 7 South., ■596; Insurance Co. v. Sorsby, 60 Miss., 302; McPilce v. Assurance Co., 61 Miss., 37; Chicago, etc., R. R. Co>. v. Calumet, 88 Am. St. Rep., 69. A carrier may by its conduct estop itself from insisting upon a compliance with the terms of its bill of lading. This it is held to do with respect to limitations upon the time within which an action for loss or injury to the articles shipped must be brought, whenever, by negotiations for settlement or otherwise, it so acts as to justify a reasonable belief on the part of the' shipper that the claim will be settled without suit. If the .shipper, acting on this belief, does not institute suit until the time specified in the bill of lading has elapsed, the carrier will nevertheless be estopped from invoking the limitation. 6 Cyc., . 509, note 4. It will be noted that the shipper, well within the limited time for presentation of claim for loss or injury, turned over his •claim to the company’s agent. This court has hqld more than once that provisions limiting time for presentation of claims for loss and damage arising under bills of lading and receipts for shipments, and limiting suits therefor to within one year, are not unreasonable. Southern Express Co. v. Hunnicutt, 54 Miss., 566; Universal Life Ins. Co. v. Whitehead, 58 Miss., 226; Bonner v. Mutual Life Ins. Co., 36 South., 538; Hartzog v. Western Union Tel. Co., 84, Miss., 450, 36 South., 539; Clement v. Western Union Tel. Co., 77 Miss., 747, 27 South., 603. It is important for all parties concerned that claims should be filed with carriers and pressed for action at as early a date as practicable after ascertainment of loss or damage to consignments of property; because the evidence can then most easily be ascertained while the matter is fresh in the minds of those concerned. While it may be true that a carrier may waive the provisions of the contract of shipment, waiver will not be implied from slight circumstances. Some unequivocal act such as will wort an estoppel must be invoked and clearly proved. 29 Am. & Eng. Encyc. of Law (2d ed.), 1095, 1096. It will be observed that, in the dealings with appellant, there was no affirmative conduct upon the part of the local agent of the appellee. The agent never at any time even pretended to have authority to settle the claim; and it is undisputed that he merely agreed to write to the appellee’s superintendent and ascertain what this superior officer would do, and let appellant know on receipt of answer from the superintendent. The appellant himself was perfectly free and able to write to the-superintendent. The delivery by appellant to the appellee’s agent of the invoice of goods and of the bill of lading was not a compliance with the requirement that claims should be presented in writing. The appellant failed to show that he ever even asked the appellee’s agent at Aberdeen anything about the claim, after the-year’s time had expired. There certainly could have been no-waiver of the year’s time in which to bring suit unless the appellant affirmatively proved that the company promised payment or promised to investigate, or to consider the claim after-the year for bringing suit had expired. In the cases cited by opposing counsel, and in many others examined by us, we understand the reasoning of law to be that the agent who waives must be shown to have full authority to-adjust, pay, or make settlement, and such agent must so act as to induce the party with whom he deals to believe that there will be no insistence upon the condition as to making proof of loss within a given time, or as to instituting suit within a given time. In the case of Chicago, etc., Railroad Co. v. Calumet, as reported, with foot notes, in 88 Am. St. Rep., 118, reference is made to the case of Thompson v. Chicago, etc., Railroad Co., 22 Mo. App., 321, which latter case holds, that “if, notwithstanding such negotiations, the shipper still had ample time after they had ceased within which to begin his action before the stipulated time elapsed, the carrier cannot be estopped from claiming the benefit of the stipulation.” See also McPilce v. Insurance Co., 61 Miss., 37; Insurance Co. v. Sorsby, 60 Miss., 302.