Wilkins v. Atlantic Coast Line Railroad

Hoke, J. Section 2634, Eevisal, in effect provides tbat every claim for loss or damage to property in shipment by a common carrier shall be adjusted as to intrastate shipments within sixty *58 days from time of filing same with, tbe company’s agent and witbin ninety days in case of shipments from without the State, under penalty of $50 for “each and every such failure,” and with jiroviso that the penalty is not enforcible unless the party aggrieved in his action shall recover the full amount of the claim. Defendant resists recovery: 1st. Recause the amount of the claim should be reduced by the value of the keg. 2d. By reason of a clause in the bill of lading in terms as follows: “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 delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.” But on the facts in evidence, we are of opinion that neither position can be sustained. In contracts of affreightment, the consignee under an ordinary bill of lading may not, as a general rule, reject the goods because the same have been wrongfully damaged in the course of shipment. Under usual conditions he must receive the goods 'and hold the company for the injury done, and he is required further to do what good business prudence would dictate in the endeavor to minimize the loss. The principle, however, does not obtain when the “entire value of the goods has been destroyed and the injury amounts practically to a total loss.” In such case the consignee is justified in refusing the goods, and may sue for the entire amount. Hutchison on Carriers (3d Ed.), sec. 1365; Manufacturing Co. v. R. R., 62 Wis., 642; Brand v. Weir, 57 N. Y. Supp., 731; 5 A. and E. (2d Ed.), 384. And so it is here. This was a shipment of syrup, and the evidence justified a verdict for the entire loss. The keg was only an incident, too small to be regarded — 25 cents at the most — and the claimant testified that it would not pay him to try and utilize it. And we do not think on the facts as presented that the restrictive stipulations in the bill of lading afford protection for defendant. There is authority to the *59 effect that on these facts, when the goods are in evidence, rejected on account of their damaged condition and all the facts and circumstances fully known to the company’s agent, the provision relied upon should be held to have no application whatever. Kime v. R. R., 156 N. C., 451; 6 Cyc., p. 507; Moore on Carriers, p. 337. And in any event we are of opinion that the time which elapsed while the goods were in the defendant’s depot and when the consignee was misled as to their placing by assurances to the contrary, on the part of defendant’s agents, should not be counted to the claimant’s prejudice. Under these circumstances, the offer to deliver in August should be held as the time of delivery under the first clause of the bill of lading, if the same applies, and to waive or displace the requirement contained in the second clause, that the “claim be filed within four months after a reasonable time for delivery has elapsed.” Hutchison on Carriers, sec. 444; Moore on Carriers, pp. 335-336. In any aspect of the matter, therefore, we are of opinion that the stipulations of the bill of lading do not affect the result, and the objections urged to the validity of plaintiff’s recovery must be overruled. There is no error, and on the record the judgment is affirmed. No error.