Lasky v. Southern Express Co.

Mayes, J., delivered the opinion of the court. The loss of the goods about which this suit is instituted occurred in November, 1903, and .suit was instituted in justicie court in July, 1906. Therefore Code 1906, § 3127, has no bearing on the controversy. We do not consider what effect this section may have on the stipulations in future. While the record shows that the claim of Lasky against the express company for the loss of the hats was not made in writing, it also shows that the goods were received on Saturday, and the loss called to the attention of the express company on the following Monday, almost immediately' after the loss was discovered. It is also shown that Lasky turned over the original invoice and express receipt to the agent when he made his claim for the loss of the goods. The express agent told Lasky afterwards that he had put in the claim and wanted to hear from the superintendent’s office, and as soon as he heard, the matter would be settled. In this way Lasky was put off from time to time, as he says; the agent telling him all the while that he had put in the claim and was waiting to hear from it. In the case of Express Co. v. Stevenson, 89 Miss., 233, 42 South., 670, it was held that where verbal notice was given by the shipper of his claim for damages, and the express agent undertook [274] to send a tracer after the goods, and after trying to find them for some time reported that he conld not, and a written demand was afterwards made on the express company, it conld not avail of the defense that the claim was not propounded in writing within the time stipulated in the shipping contract that it should be. The printed terms of shipment on the back of the contract in this case provide that the express company will not be liable for loss, damage, or detention, unless the claim shall be presented in writing within ninety days from the date of the contract; and it also provides that the company shall not be liable in any suit to recover for the loss, damage, or detention of the property, unless same shall be commenced within one year after such loss, damage, etc., shall have occurred. In the cases cited by counsel for appellee the extent to which this court has gone is simply to hold that carriers may make reasonable regulations with reference to the manner in which and the time when a claim shall be propounded. We have no^ case holding that a carrier may limit the time within which suit shall be commenced after it has received notice of the loss or damage, and since the passage of Code 1906, § 8127, the question is now of no practical importance. In all cases where a carrier seeks to defeat a claim because it has not been presented in writing within the period stipulated in the contract of shipment, two things must be shown in order to make this defense available: First. When the shipper makes complaint of damage or loss, it must show that it has done nothing to mislead him, or cause him to believe that it has waived the requirement that the claim shall be in writing. When a claim is made to a carrier, even when it has in the contract of shipment the requirement that it shall be in writing, if it accept a verbal claim without protest, and undertake to deal with the claim in any way, it waives the requirement that it shall be in writing. If the carrier intends to stand upon this stipulation, it must decline to have anything to do with a claim which is propounded verbally, and notify the person undertaking to propound his claim in this way at the [275] time; and if it does not, and deals with the claim in any way or does anything which reasonably leads the shipper into the belief that this requirement has been waived, it cannot after-wards insist upon it. Second. While we are not called upon in this case to say whether or not a carrier may make a valid stipulation as to the time wjthin which suit shall be commenced after loss or damage has occurred, we do say that, if the period of time contained in the shipping contract is valid, it must be reasonable as to time, and there must be prompt action on.the part of the carrier in denying its liability, so that the shipper may be duly apprised of the fact that suit will be necessary. Any unusual delay, or any long period of time consumed by the carrier in handling the claim, will constitute a waiver and prevent it from asserting this provision. Stipulations in shipping contracts of the character under discussion are made entirely for the benefit of the carrier, and will receive strict construction, to the end that through it just claims of shippers may not be defeated by dilatory methods in handling the claim. These stipulations are made on the back of the contracts of shipment, and are rarely read by the shipper, and the one grornid upon which they can - be upheld is that they are reasonable regulations — not contracts in the true sense. In the case of Railroad Co. v. Bogard, 78 Miss., 11, 27 South., 879, the court said: WYhere there is a clause in the contract of affreightment that a claim for damage to cattle shall not be valid unless in writing, sworn to and delivered to the agent, within ten days, the carrier cannot avail of it to escape, where, as in this case, its agent was written to, and answered that he had referred it to investigation, and the shipper received two other letters on this subject, and in none of them was any question made of the claim not being sworn to. We see no reason for not applying the same rule that has been so often applied in reference to proofs of loss in insurance matters, and we do so apply it.” In Chicago Ry. Co. v. Calumet Farm, 191 Ill., 9, 61 N. E., 1095, 88 Am. St. Rep., 117, it is held that provisions providing for notice of claim within a certain time, or fixing a period limiting [276] the right of the shipper to sue, are provisions for the carrier’s benefit, and may be waived in whole or in part by it. The waiver need not be, and seldom is, express, but may be implied from the conduct of the carrier. Hudson v. Northern Pacific Ry. Co., 92 Iowa, 231, 60 N. W., 608, 54 Am. St. Rep., 550; Hinkle v. Southern Ry. Co., 126 N. C., 932, 36 S. E., 348, 78 Am. St. Rep., 685. In 6 Cyc., p. 509, it is stated that “the requirement as to making claim for damages within the time and in the manner specified in a contract of shipment may be waived by failing to object to the form of the defective notice, or by entertaining and proceeding to consider and negotiating with reference to the claim, or by misleading the owner as to the necessity of giving notice” Under the facts in this case and the authorities quoted above, it being clearly shown that Lasky lost the goods, and that he almost immediately made verbal claim to the express company for the loss, without objection on the part of the agent, and the agent having taken charge of the invoice and express receipt in order to trace the matter, putting him off from time to time when he would apply to him about it, the carrier has waived the provision of the contract of shipment in question. If the carrier intended to insist that the claim should be made in writing, the agent should have declined to take any action on the verbal claim presented by Lasky, and should not have accepted the invoice and the express receipt and undertaken to adjust the matter. Carriers are affected with a public duty, and the rights of the public, as well as those of the carrier, are to be considered in determining the question of the validity of these regulations, and, when they are to be upheld, the carrier must unequivocally insist upon a compliance by the shipper with such stipulations as are valid at the time the shipper presents his claim, and there must be prompt action on the part of the carrier in handling the claim; otherwise, the stipulations are waived. {Reversed and remanded.