{ "id": 1562542, "name": "St. Louis, Iron Mountain & Southern Railway Company v. Cumbie", "name_abbreviation": "St. Louis, Iron Mountain & Southern Railway Co. v. Cumbie", "decision_date": "1915-05-17", "docket_number": "", "first_page": "478", "last_page": "485", "citations": [ { "type": "official", "cite": "118 Ark. 478" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "84 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524466 ], "opinion_index": -1, "case_paths": [ "/ark/84/0359-01" ] }, { "cite": "79 Ark. 185", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495619 ], "opinion_index": -1, "case_paths": [ "/ark/79/0185-01" ] }, { "cite": "96 Ark. 606", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541980 ], "opinion_index": -1, "case_paths": [ "/ark/96/0606-01" ] }, { "cite": "148 S. W. 148", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "104 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350579 ], "opinion_index": -1, "case_paths": [ "/ark/104/0154-01" ] }, { "cite": "86 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521458 ], "opinion_index": -1, "case_paths": [ "/ark/86/0504-01" ] }, { "cite": "100 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312281 ], "opinion_index": -1, "case_paths": [ "/ark/100/0166-01" ] }, { "cite": "92 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548570 ], "opinion_index": -1, "case_paths": [ "/ark/92/0041-01" ] }, { "cite": "91 Ark. 108", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511761 ], "opinion_index": -1, "case_paths": [ "/ark/91/0108-01" ] }, { "cite": "90 Ark. 512", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513841 ], "opinion_index": -1, "case_paths": [ "/ark/90/0512-01" ] }, { "cite": "94 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545460 ], "opinion_index": -1, "case_paths": [ "/ark/94/0115-01" ] }, { "cite": "96 Ark. 156", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541966 ], "opinion_index": -1, "case_paths": [ "/ark/96/0156-01" ] }, { "cite": "85 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523300 ], "opinion_index": -1, "case_paths": [ "/ark/85/0568-01" ] }, { "cite": "63 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "90 Ark. 308", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513793 ], "opinion_index": -1, "case_paths": [ "/ark/90/0308-01" ] }, { "cite": "101 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311109 ], "opinion_index": -1, "case_paths": [ "/ark/101/0172-01" ] }, { "cite": "90 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "105 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347013 ], "weight": 2, "pin_cites": [ { "page": "412" } ], "opinion_index": -1, "case_paths": [ "/ark/105/0406-01" ] }, { "cite": "89 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515206 ], "opinion_index": 0, "case_paths": [ "/ark/89/0404-01" ] }, { "cite": "101 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311109 ], "opinion_index": 0, "case_paths": [ "/ark/101/0172-01" ] }, { "cite": "90 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "105 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347013 ], "opinion_index": 0, "case_paths": [ "/ark/105/0406-01" ] }, { "cite": "105 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347013 ], "opinion_index": 1, "case_paths": [ "/ark/105/0406-01" ] } ], "analysis": { "cardinality": 586, "char_count": 15159, "ocr_confidence": 0.42, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41126142875511273 }, "sha256": "22d851acd9371beaf8cca5ab77b602ee546e0116dba1be01cba9723379a82a12", "simhash": "1:d0a33d83ccd99f08", "word_count": 2619 }, "last_updated": "2023-07-14T17:53:29.321926+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis, Iron Mountain & Southern Railway Company v. Cumbie." ], "opinions": [ { "text": "Kirby, J.\nThis is the second appeal of this case, the issue before was raised by demurrer and decided in appellees\u2019 favor, the complaint being held sufficient. Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406.\nThe suit was for damages to thirty-five ears of peaches shipped over appellant\u2019s line from Greenwood, this State, to Cleveland, Ohio, and various other points, because of the negligent delay in transportation and failure to ice properly in transit.\nThe bill of lading issued by appellant, the initial carrier, provided: \u201cClaims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee is notified of the arrival of the freight at place of delivery. If such notice is not there given, neither this company nor any of the connecting or intermediate carriers shall be liable.\u201d\nThis stipulation was pleaded in the complaint passed upon with an allegation that it was unreasonable and void and constituted a restriction or limitation upon the railway\u2019s liability and without any allegation that the notice was given. But it was alleged in the amendment to the complaint that the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on delivery, and that its general agent, for such shipments, naming him, and its local agent at Greenwood, knew all the foregoing facts.\nIt was there held that the complaint was sufficient and that it was not necessary as a condition of recovery that the \u00a1shipper give the delivering carrier the notice of an intention to claim damages to the peaches since such carrier through its agents examined and knew the condition of the 'shipment .of peaches while in its possession at their destination, according to the allegations of the complaint, which were admitted by the demurrer. The court said, \u201cWhere the facts stated show that the delivering carrier had actual knowledge \u00a1of all the conditions that a written notice could give it, the written notice is not required and a provision requiring it under such circumstances would be unreasonable.\u201d\nIt was also \u00a1held that it made no difference whether the provisions of the contract of shipment required the notice \u201cof loss or damage to he given\u201d or whether its language provided for written notice of an intention to claim damages, .the purport of these provisions \u00a1being .alike and having the same legal effect and also that they were not limitations upon or exemptions from liability of the carrier but only conditions precedent to recovery.\nOn this trial appellees introduced testimony in support of its allegation that the delivering carrier examined the shipment on .arrival at destination iand ascertained the damaged condition thereof. Such testimony was to the effect that 'the depot manager in one instance had an opportunity to see the condition of the fruit, although no employee of the railroad was with the .consignee When he inspected the car that had been opened for him before delivery. In .another, that no claim for damages was put in, but he notified the delivering carrier verbally that the car was in bad condition. Relative to another car, that it was the custom of the delivering carrier to inspect peaches before delivery and that one of the clerks did inspect it. In other instances, that .some yard clerk or some employee of the road saw the car unloaded and knew the damaged and rotten condition of the peaches.. 'The agents of the different delivering carriers, the local freight agents in .some instances and the agents to whom the notices of intention to claim damages should have been given, or to. whom they would finally have come, as well as the general freight claim agent of the appellant company, all testified that no notice in writing was given to the delivering carrier of the damaged condition of the .shipment of peaches nor of an intention to claim damages within thirty-six hours .after the arrival of the shipment and that they had no notice of any ,sudh damaged condition or intention to claim damages until the bringing of these suits. Said general claim agent .stated that he caused an investigation to be made of the handling of the thirty-five cars embraced in this suit and no written notice was given within thirty-six hours after the notice of arrival of cars at destination \u00a1or \u00a1at all upon the delivering lines, as to any claim for-damages \u00a1by tbe consignee to tbe agent of tbe delivering line. His first knowledge \u00a1of any such claim was the bringing of tbe siuit. That no exceptions or objections were made by tbe consignees at the time of tbe delivery of tbe Cars and tbat they were delivered upon receipts of tbe connecting carriers and tbe consignees, showing them to be in good order.\nNo attempt was made to show that any written notice was given to .any delivering carrier of 'an intention to claim damages within thirty-six hours of the arrival of tbe shipment, or at all, nor was any testimony introduced tending to show that the local agents of appellant at G-reenwood knew of any such material facts as .alleged in the complaint and they both testified that they had no knowledge of tbe peaches arriving in a damaged condition or that tbe appellee claimed damages on account thereof, until tbe filing of tbe \u00a1suit.\nThe court has not only frequently held that such a provision requiring tbe written notice of tbe intention to claim damages given to tbe delivering carrier is reasonable and a condition precedent bo recovery, but has so held in this case on the former appeal as already said. Such notice can only be dispensed with by \u00a1showing that tbe delivering carrier bad actual knowledge of the damaged condition of tbe shipment on arrival and necessarily that a claim therefor would be made. The purpose of requiring such notice to be given is to enable the carrier, while the occurrence is ireeent, to inform itself \u00a1of the actual \u00a1facts occasioning the loss or injury that it may protect itself against claims Which might be made upon it, \u2022after such lapse of time as to make it difficult if not impossible, to ascertain the truth. St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 313; St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 172.\nIn this last cited case, the \u00a1consignee or his agent, declined to receive the .shipment, thinking it damaged in its entire value, and sent \u00a1a telegram to that effect to tbe consignor, a copy of which, was given to the delivering carrier and it was held that that was a sufficient compliance with the provision requiring written notice of .an intention to claim damages. The purpose of the \u00a1clause requiring notice would he utterly defeated and such requirement rendered ineffectual and worthless if it could be disregarded and a recovery had, notwithstanding the failure to give it, upon .the testimony of appellee introduced in the trial. The most it tends to show is that some agent or some employee of the delivering carrier saw, or could have seen, if he had endeavored to do so, the damaged condition of the shipment of peaches on arrival and delivery. Nowhere does any one of said witnesses say or intimate that he notified any agent of sudh carrier in authority that the shipment was so damaged, and that a claim for damages would be made. Of course, the delivering carrier could inspect for itself each oar load of perishable freight upon delivery to the consignee and .ascertain its condition, and if the testimony was sufficient to show that this had been done and that such carrier had actual 'knowledge of such damage as must cause a reasonable inference that a claim would be made therefor, it might be required to \u25a0answer for such damage without the written notice. But here was a reasonable provision of its contract of carriage upon the compliance with which it had the right to rely \u25a0and which was not attempted to be performed by the consignee who relies for his failure to give the notice upon the alleged fact that such carrier had actual knowledge of the damaged condition of the shipment on arrival at destination and must take notice that a. claim would be made for such damages.\nThe burden of proof was upon the shipper, Who failed to give the written notice, to show such actual \u00a1knowledge of the damaged condition of the shipment on arrival .and delivery to the consignee as would cause such delivering carrier to know that a claim for damages would be made, \u00a1that it might investigate and discover the true condition 'and protect itself against unjust claims.\n\u25a0 The fact that some employee whose duties were not shown to include the investigation of such matters or to report to some agent in .authority \u00a1anything relating to \u00a1the condition of the shipment was present upon the delivery -and saw the damaged condition of the fruit shipped, or could have seen it, is not sufficient to show actual 'knowledge upon the part of the delivering carrier that would excuse the failure to give \u00a1the written notice of intention to claim damages as a condition precedent, to recovery. It might he that some employee or some .agent who had no duty whatever relative to such matters could he present and see the shipment \u00a1and know of its damaged condition, and still the agents or employees, whose duties required attention to such matters, never be informed about it.\nThe proof is not sufficient to support the findings and judgment. The judgment is therefore reversed \u00a1and the cause having been fully developed, must be dismissed. It is so ordered.", "type": "majority", "author": "Kirby, J." }, { "text": "Wood, J.,\n(dissenting). In my opinion, there was ample evidence to warrant the finding by the court that the delivering carrier had knowledge of the damaged condition of the peaches. \u00a1Such knowledge under Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406-14, was sufficient to dispense with the written notice. In that case we held: \u201cIt was not necessary, as a condition of recovery, that the appellants give appellee written notice of an intention to claim for damages to the peaches if the delivering carrier, through its .agents, examined and knew the condition of the peaches while in its possession after their arrival at \u25a0destination. * * Where the delivering carrier has actual knowledge of all the conditions that a written notice could give it, then written notice is not required. \u2019 \u2019 Without reviewing the evidence in detail, which could serve no useful purpose, it tends to show that the employees of the delivering carrier, in one instance an employee \u201cwho had charge of the ear tracks, \u201d .and who inspected the peaches, who \u201creleased the cars\u201d which contained the peaches; in other instances, the \u201crailroad inspector\u201d \u201cwent every morning\u201d and in company -with ithe shipper\u2019s agent would \u2018\u2018look at\u201d ithe peaches; a \u201cMr. McKelvey, the railroad inspector,\u201d went at the request of the consignee and \u201cinspected\u201d the peaches, etc. The peaches were shown to have been se ibadly damaged that their condition Could not have esoaped the observation of those who had them in charge, and those who inspected same. Therefore, treating the finding of the court on the question of fact the same as if it were the verdict of a jury, .as we must do, and giving it at least as much potency as the verdict of a jury to which it is certainly entitled, I \u00a9an not escape the conclusion that the evidence is sufficient here to sustain the finding of fact by the court. We are not the triers of issues of fact, .and the unvarying rule of this court is to uphold the verdict of a jury, or a finding of fact by the court sitting as a jury, where there is any substantial evidence to sustain it. In such \u00a9ase the issue is one of fact and not of law.", "type": "dissent", "author": "Wood, J.," } ], "attorneys": [ "Thos. B. Pryor, for appellant.", "Robert A. Rowe, G. A. Starbird and P. E. Rowe, for appellee." ], "corrections": "", "head_matter": "St. Louis, Iron Mountain & Southern Railway Company v. Cumbie.\nOpinion delivered May 17, 1915.\n1. Carriers \u2014 notice of damage to freight. \u2014 A requirement by a carrier that a notice of the intention of a shipper to claim damages for an injury .received by freight in transit, must he given, is \u25a0reasonable and enforceable as a condition ito recovery.\n2. Carriers \u2014 damage to freight \u2014 notice.\u2014Where a notice of damage is stipulated for, the notice can ibe dispensed with only by showing that the delivering carrier had actual knowledge of the damaged condition of the 'Shipment on arrival, and necessarily that a claim therefor would toe made. ,\n3. Carriers \u2014 damage to freight \u2014 notice \u2014 presumption \u2014 burden of proof. \u2014 The burden of proof is upon a shipper who fails to give the notice required (by the bill of lading, of his claim for damages \u2018to freight shipped, to show such actual knowledge of \u25a0the damaged condition of the shipment upon arrival and delivery to the consignee, as would cause the delivering carrier to know that a claim for damages would be made, so that it might investigate and discover the true condition and protect itself against unjust claims.\nAppeal from Crawford Circuit Court; Jeptha H. Evans, Judge;\nreversed.\nThos. B. Pryor, for appellant.\n1. The law of this ease with reference to the provision in the bill of lading that notice should he given in wilting, within thirty-sis hours after the arrival of the shipment at place of delivery, of damages thereto, has been settled by this court on former 'appeal, namely, that such notice is reasonable, and a condition precedent to recovery. 105 Ark. 406, and authorities cited. See also 90 Ark. 313, and oases cited.\nNo attempt was made on the part of the plaintiff to prove \u00a1the 'allegation in the 'amendment to his complaint \u201cthat the defendant, the general agent for fruit shipment, C. E. Carstarpihen, and its local agent at Greenwood, Ark., L. W. Rhodes, \u00a1knew all of the foregoing material matters.\u201d On the contrary, their.testimony is that they knew nothing of the peaches arriving in a damaged condition, iand nothing of any olaim for damages on account thereof until the filing of. this suit. The proof is also that the oars of peaches were transported by .appellant over its line of road, delivered to connecting carriers 'and by them to the consignees without objection or protest of any kind, that they were believed to have been properly delivered, and that no claim was ever presented, nor any notice of any claim for damages made until the institution of this suit.\n2. The shipments were interstate, and, therefore, governed by the Federal law. 42 Ark. Law Rep. 24.\nRobert A. Rowe, G. A. Starbird and P. E. Rowe, for appellee.\n1. If the delivering carrier examined the peaches upon arrival and 'knew for itself the condition of the consignment on arrival, it was not necessary, as a condition precedent to recovery to give .the notice in writing provided for in the bills off lading. 105 Ark. 406, 412; Hutchinson on Carriers (3 \u00a9d.), \u00a7 442; 101 Ark. 172; 90 Ark. 308; 63 Ark. 332; 89' Ark. 404.\n2. A judgment will not be reversed for error appearing in the record, Where, upon the whole record, it appears that 'the judgment is right. 85 Ark. 568; 96 Ark. 156; 94 Ark. 115. Findings of fact by a court sitting as a jury, are conclusive. 90 Ark. 512; Id. 494; Id. 375; 91 Ark. 108; 92 Ark. 41; 100 Ark. 166; 86 Ark. 504; 104 Ark. 154; 148 S. W. 148; 96 Ark. 606; 79 Ark. 185; 84 Ark. 359." }, "file_name": "0478-01", "first_page_order": 500, "last_page_order": 507 }