Opinion
February 28, 1949.
1. Actions — pleading — contract or tort — action against common carrier.
As a general rule where there is a breach, both of contract and of duty imposed by law, as in case of loss or injury by a common carrier, the plaintiff may elect to sue either in contract or in tort.
2. Actions — pleading — against common carrier — usually construed as in tort.
Tort is the natural and habitual foundation of the action for a breach of the ordinary contract of carriage, and the declaration will be so construed unless the facts of the case clearly show that the plaintiff has elected to sue on the contract, and the fact that the plaintiff has pleaded the contract of carriage for the purpose, and no further than for the purpose, of showing the relation out of which the duty alleged to have been violated arose, does not alter the rule as stated.
3. Carriers — liability in interstate commerce — necessity of claim against initial carrier.
In an action against the initial carrier for damage to a carload shipment in interstate commerce, the carrier would be entitled to a directed verdict, if it appeared from the proof either of the plaintiff or the defendant that the claim for the damage had not been filed in the time required by the Carmack Amendment to the Interstate Commerce Act, and this is true although the declaration asserts a pure common law claim for damages and does not aver any facts bringing the case within the operation of the Carmack Amendment.
4. Pleading — interstate commerce — action against interstate carrier.
The Carmack Amendment to the Interstate Commerce Act which fixes the liability of the carrier for interstate shipments contains no specification as to pleadings in such cases, so that the rules of pleading in common law cases, in the courts of the state where the action is brought, would control.
5. Carriers — interstate commerce — notice of loss — purpose of — waiver — pleading.
The purpose of the federal statutes in requiring claim for damage to interstate shipment to be filed with the carrier within a period of nine months is in order to afford the initial and the connecting carriers an ample opportunity to investigate, and as it is for the benefit of each of the carriers, it cannot be waived by either, but because it is a contract obligation, it is not necessary for the plaintiff to allege compliance with it, when basing his action on negligence, he sues in tort, there being no requirement in a tort action that the plaintiff shall allege the performance of any conditions precedent, — a rule not altered by Sec. 1515, Code 1942, which has application only to action ex contractu.
6. Carriers — interstate commerce — damages to shipment — provisions of bill of lading as to notice.
The provision of the bill of lading in an interstate shipment of freight requiring the filing within the time specified of a claim for any loss, prescribes a condition precedent to the maintenance of any action for such loss, but it does not require that the declaration in a tort action shall allege that such claim had been filed, so that if a declaration in tort does not so allege, the carrier must plead it specially, and may not avail of the defense merely by a demurrer to the declaration nor by a plea of no more than the general issue.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Jones County; F. BURKETT COLLINS, J.
Cameron Wills, for appellant.
By referring to the quotation from Section 2 (b) of the conditions of the uniform straight bill of lading it will be seen that this Section specifically provides that the giving of notice is a condition precedent to recovery on claims against the receiving, delivering, or any intermediate carrier, without regard to where or under what circumstances the loss, damage, injury, or delay occurred. The general rule of pleading conditions precedent to recovery is stated in 49 C.J. page 145, Section 157, as follows: "Where conditions precedent to the right of action exists, their performance or fulfillment must be alleged by plaintiff in order to state a cause of action . . ."
Cited to this text is the old Mississippi case of Copes v. Matthews, 18 Miss. 398. The rule is upheld in Emanuel v. Laughlin, 3 S. and M. 342, and in Burrus v. Borden, 57 Miss. 93.
In recognition of this basic rule but not in modification thereof, our Code contains Section 1505 which reads as follows: "In pleading the performance of conditions precedent, the plaintiff or defendant may aver generally that he duly performed all the conditions of his part; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent the performance of which he intends to contest."
This Code provision does not do away with the necessity of pleading compliance with the conditions precedent, but substitutes for the detailed pleading a general allegation by the pleader "that he duly performed all of the conditions on his part".
Neither the original declaration nor the declaration as amended contained any general allegation that appellee had "duly performed all the conditions on his part", or any allegation that notice in writing had been given to appellant. If the provisions of the contract as set out in Section 2(b) are effective, appellee did not plead performance of the condition precedent, and performance or fulfillment has not been alleged as required by the quotation from Corpus Juris, supra, as an essential allegation "in order to state a cause of action".
That this is not an ordinary action for damages, or for negligent injury to property, is obvious at the outset. As a necessary part of appellee's case, he alleged in his declaration the delivery of the rice to appellant as a carrier, and its acceptance thereof and issuance of its bill of lading requiring delivery in Detroit, Michigan. Not only does this court judicially know that the transportation contemplated was in interstate commerce, but this court knows that appellant's line of railroad extends no further than the City of Meridian, in the State of Mississippi.
In the case of L.M. Kirkpatrick Co. v. Ill. Cent. R. Co., 190 Miss. 157, 195 So. 692, 135 A.L.R. 607, this court was concerned with the application of the two year limitation on the bringing of actions after the denial of the claim in writing by the carrier. We quote from the opinion as follows:
"These decisions mean that under the provisions of the Commerce Act, and the uniform bill of lading provided by the Interstate Commerce Commission, the time fixed within which claims for loss shall be filed, as well as the time fixed within which suit must be brought, are conditions precedent to liability. In other words, after the lapse of such time both the right and the remedy are barred."
But most significant is the reliance on and approval of the case of Georgia, Florida, etc. R.R. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 544, 60 L.Ed. 948, by this court.
In the Blish Milling Co. case the action was brought as one in trover, clearly a tort. The claimant contended that misdelivery had amounted to a conversion and that his remedy was not on the contract but in trover for the conversion; and exactly as appellee contended in the court below, that since the action was one for tort, the provisions of the contract were not applicable since they did not give rise to the right of action actually being asserted. The court will note that, under the terms of the Hepburn Act as it existed at the time of the decision in the Blish Milling Co. case, all of the previous rights of the shipper were retained, and damages for carelessness or negligence were recoverable without notice. Notwithstanding this proviso, it was held that the provisions of Section 2(b) of the conditions of the uniform bill of lading were applicable.
It is easy to understand both the atttiude of the Supreme Court and of Congress when it is recalled that this legislation is intended to have uniform operation throughout the United States. If distinctions between actions in contract or tort were allowed in states where common law practice prevails, remedies would be available to shippers in the state courts, where corresponding remedies would be unavailable in the Federal Courts, proceeding under the Federal Rules of Civil Procedure where no distinction is made between actions in tort and contract; and in states following code practice, where no such distinctions are permitted. If the Supreme Court or Congress should permit distinctions on the basis of the form of the action in Mississippi, Florida, and Illinois, both shippers and carriers in these jurisdictions would be subject to different rules from those prevailing in Missouri, Georgia, or Louisiana. Moreover, varying rules of local practice would result in substantive differences between the recoveries allowable in various states acording to the local practice in those states, notwithstanding the purpose of uniformity running throughout the entire history of the Interstate Commerce Act.
Deavours Hilbun, for appellee.
Appellee maintains that since the action is one sounding in tort, the condition precedent, which is in effect a contractual limitation of action, is a matter of defense for appellant. Such defense is generally raised by a special plea in bar in the nature of a confession and avoidance.
In support of the above argument we cite the following cases and authorities:
As stated in Chase and Company v. Atlantic Coast Line Railroad Co., 115 So. 185, 186: "The Interstate Commerce Act, being a Federal Act, supersedes all State laws affecting the carrier's liability for interstate shipments of property. The Carmack Amendment to the Interstate Commerce Act, while refining the carrier's liability for interstate shipments, has no specification as to pleadings in such causes. In this situation the rules of pleading in common law cases prevailing in the State courts would control."
The Mississippi Code of 1942, Section 1464, abolishes forms of action in Mississippi in the following words: "The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different."
However, the inherent distinctions in matters of substance and the right to make an election of remedies are still recognized. In Elliott on Railroads, Second Edition, Volume 4, Section 1693, it is said: "The abolition of forms of action in the code states and the modification of the strict common law rules in most of the other states have rendered the old rules and distinctions between the different forms of action of comparatively little importance. But the inherent distinctions in matters of substance are still recognized, and there still remains, in many cases, the right to make an election of remedies, which where one exercised, may have an important influence upon the right to recover or the amount of the recovery. As a general rule, where there is a breach both of contract and of duty imposed by law, as in case of loss or injury by a common carrier, the plaintiff may elect to sue either in contract or in tort.
The right to elect to sue in contract or tort is recognized in a recent Mississippi case, Hasson Grocery Co. v. Cook, 17 So.2d 791, 792: "Concededly an injury may give rise to an action either ex delicto or ex contractu. That the tort involved a breach of contract is no impairment of the right to sue for the tort. The contractual relation expends its force once it has served to establish a relationship which creates duties whose breach constitute the tort. Braun v. Riel, Mo. Sup., 40 S.W.2d 621, and case notes in 80 A.L.R. 884, 115 A.L.R. 1026. But suits when brought avowedly upon negligence invoke the breach of duty as a tort and not as a breach of contract."
"Under our system of pleading, the formal distinctions between actions are abolished, and the declaration states the facts which constitute the cause of action, plainly, distinctly, and substantially. In determining, therefore, the character of the action, we look to the substance of the whole statement, and not to the mere formal language in which it is expressed. We have regard to the facts constituting the cause of complaint, and afford the plaintiff the most ample redress and relief which the facts will justify, consistent with a due regard to the rights of the defendant. It is the policy of our system to trammel the rights of the parties as little as possible, by the technicalities of mere form, but so to shape the pleadings as to bring before the jury the very right of the matter in issue between them, without unnecessary delay or expense. Hence, when the facts are plainly and distinctly stated, the action will be regarded as either in tort or contract; having regard, first, to the character of the remedy such facts indicate; and second, to the most complete and ample redress which, upon the facts stated, the law can afford.
"And in cases of this character (against common carriers), the courts are inclined to consider it as founded in tort, unless a special contract very clearly appears to be made the gravamen and object of the complaint in the declaration. These doctrines are very clearly and distinctly announced in the case of Heirn v. McCaughn, 32 Miss. 39, and the authorities cited, and meet our unqualified approbation." New Orleans, Jackson, and Great Southern Railroad Company v. Hurst, 36 Miss. 660, 667.
The case of Heirn v. McCaughn, 32 Miss. 17, 40, cited with approval above, emphasizes the tort liability of common carriers as distinct from their contract liability: "Their business as common carriers charges them with duties to the public, which, when violated, entitle the parties aggrieved to an action for the tort, which is wholly distinct from a matter of individual contract."
And in Aiken v. Southern Railroad Co., 62 L.R.A. 666, 668, it is said: "Tort is the natural and habitual foundation of the action for the breach of the ordinary contract of carriage, and the declaration will be so construed, unless the facts of the case clearly show that the plaintiff has elected to sue on the contract. Whittenton Mfg. Co. v. Memphis O. River Packet Co., 21 Fed. 896."
The intention of the plaintiff in stating his facts is important in determining whether the suit is in contract or tort. In Barndt v. Frederick, 11 L.R.A. 199, 201, citing Western Assurance Co. v. Towle, 65 Wis. 254, it is said: "Each complaint must be judged of upon the exact facts stated in it, in order to determine whether it be an action in tort or on contract, and in determining that question the evidence intention of the party is stating his facts must have effect in determining the question when the facts alleged might sustain a cause of action, either in tort or on contract."
The mere fact that the plaintiff attached a copy of the contract of carriage to his declaration as an exhibit does not necessarily show that the suit is one ex contractu. In 41 American Jurisprudence 339, 340, Section 72, it is said: "An action is not excontractu where the contract is pleaded as inducement only, showing the relation out of which the duty alleged to have been violated arose."
Even though the contract, in whole or part, is not considered surplusage, the condition precedent contained therein is not a limitation on the right to sue, but on the right to recover, and hence, a matter of defense. The majority rule is stated in Elliott on Railroads, Second Edition, Volume 4, Section 1714. The greater number of courts seem to view such stipulations as not strictly conditions precedent to actions but rather as limitations on the right of recovery and hence a matter of defense to be raised by the answer.
The following authorities support the majority rule: 41 Am. Jur. 351, Section 87; 41 Am. Jur. 403, Section 159; Elliott on Railroads, Second Edition, Volume 4, Sections 1693 and 1718.
From a decision of the Circuit Court of Jones County, affirming a judgment of the county court thereof in favor of the appellee, Thomas Elias, against the appellant, New Orleans Northeastern Railroad Company, as the initial carrier of a carload shipment of rice from the City of Laurel in said county to the City of Detroit, Michigan, this appeal is prosecuted. The amount of loss or damage shown was assessed by the jury upon a writ of inquiry as to the damage to a part of the shipment because of the boxcar being "sideswiped" and damaged in transit as a result of the alleged negligence of the defendant "and/or its agents". The sole question at issue on the writ of inquiry was of course the extent of the damage, the court having directed a verdict in favor of the plaintiff when the defendant declined to plead further to the plaintiff's declaration after a demurrer thereto had been overruled.
The principal question involved on this appeal is whether or not the trial court committed error in its rulings as to the sufficiency of the pleadings.
The appellee, as shipper of the carload of rice, alleged in his original declaration the delivery of the shipment (consisting of 285 bags of rice, weighing 100 pounds each, and for which plaintiff paid $5,700) to the appellant railroad company at the City of Laurel, in good condition and properly stored in the boxcar, for transportation to Detroit; that the rice was badly damaged in transit; and also the issuance of a through bill of lading to himself therefor, a copy of which is admitted to have been attached as Exhibit "A" to the declaration, although the record here does not disclose the same as a part of the declaration, or otherwise. However, such part of the bill of lading as is deemed material by the parties on the issue before us is fully quoted in the defendant's special plea in bar, as being an exhibit to the declaration, and which was filed along with its plea of the general issue to the same.
This plea in bar admits the receipt and transportation of the quantity of rice alleged in the declaration; that the defendant issued its bill of lading to cover the shipment; that Exhibit "A" to the declaration is the original thereof; and then alleges, in avoidance of liability, that the bill of lading contains a provision, Section 2(b), upon which the defendant has relied, and continues to rely, reading as follows: "As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay ocurred, within 9 months after delivery of the property . . . or, in case of failure to make delivery, then within 9 months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid."
The foregoing constitutes all of the material averments of the special plea in bar, as amended and submitted to the Court, along with the defendant's plea of the general issue. That is to say, the plea as finally submitted contained no averment that the provisions of Section 2(b) of the bill of lading had not been complied with on the part of the plaintiff.
It appears incidentally from the Court Reporter's transcript of the proceedings that this special plea in bar, as originally drawn and filed, on January 12, 1948, contained some additional paragraphs which were stricken therefrom on January 15, 1948, upon the defendant's own motion; and it appears not from the record but in the briefs of the appellant here that one of these stricken paragraphs contained an averment that Section 2 (b) of the bill of lading had not in fact been complied with by the plaintiff in that the claim for damages had not been filed by him within the nine months prescribed therein. And, it is the position of the appellant in its briefs here that the foregoing averment was withdrawn from its said plea in bar in order to require the plaintiff to demur to the same as thus amended, instead of permitting an issue to be joined thereon.
Thereupon, the plaintiff, as anticipated, did demur to the plea in bar, as amended, and the defendant then made a motion to relate the demurrer back to the declaration and to sustain the same thereto, under the authority of 49 C.J. 443, Section 547, and 49 C.J. 444, Section 548; Miles v. Myers, Walk. 379, 1 Miss. 379; Haynes v. Covington, 9 Smedes M. 470, 17 Miss. 470; Tucker v. Hart, 23 Miss. 548; and State v. Bowen, 45 Miss. 347, as to the right to have the same related back thereto. This motion was overruled and the decurrer to the plea in bar was thereupon sustained.
Section 1492, Code 1942, provides that: "If the plaintiff demur to the plea of the defendant, and the demurrer be sustained, the judgment shall be that the defendant do answer over to the declaration; but he shall be compelled to plead to the merits, and the plaintiff shall not be delayed of his trial. And if the plea then filed be demurred to and such demurrer be sustained, further leave to plead shall not be granted."
However, the plaintiff obtained leave to make an amendment to his original declaration, which apparently was one on contract, so as to charge that: "as a result of the delay in the movement of said freight and as a result of the negligent manner in which the boxcar containing said freight was handled by the defendant and/or its agents, said boxcar was damaged by being sideswiped, and as a proximate cause of said negligent handling the freight aforesaid was greatly damaged and caused to depreciate in value when delivered to its ultimate destination . . .". (Emphasis ours.)
Upon the allowance of the amendment to the declaration, the suit was thereby changed from an action ex contractu to an action ex delicto based upon the alleged negligence aforesaid, and counsel for defendant thereupon stated into the record a concession that the plaintiff was entitled to so amend his declaration, and then further stated: "but we would not be in position to meet the new cause of action stated by way of amendment at this trial or at this term. If the amendment should be allowed, we would be compelled to ask that the case be continued for the term, that we be given the usual time and opportunity to prepare a defense. We would be confronted with an entirely new cause of action, one which was not incorporated in the declaration as originally filed and one which we had not come here today prepared to meet, and as to which we would be entitled to the full time allowed by law to prepare for trial." The court thereupon sustained the contention of the defendant in that behalf and continued the case until the next regular term. It thus appears that the court and both of the parties understood that the suit was to be proceeded with thereafter as one in tort and not as an action based on contract.
(Hn 1) Moreover, in Vol. 4, Section 1693, in Elliott On Railroads, (2d Ed.), it is said: "As a general rule, where there is a breach both of contract and of duty imposed by law, as in case of loss or injury by a common carrier, the plaintiff may elect to sue either in contract or in tort." And, in 41 Am. Jur. 339, 340, Section 72, it is said: "An action is not ex contractu where the contract is pleaded as inducement only, showing the relation out of which the duty alleged to have been violated arose."
In the recent case of Hasson Grocery Company v. Cook, 196 Miss. 452, 17 So.2d 791, 792, the Court said: "Concededly an injury may give rise to an action either ex delicto or ex contractu. That the tort involved a breach of contract is no impairment of the right to sue for the tort. The contractual relation expends its force once it has served to establish a relationship which creates duties whose breach constitute the tort. Braun v. Riel, Mo. Sup., 40 S.W.2d 621, and case notes in 80 A.L.R. 884, 115 A.L.R. 1026. But suits when brought avowedly upon negligence invoke the breach of duty as a tort and not as a breach of contract."
And, in Aiken v. Southern ailroad Company, 118 Ga. 118, 44 S.E. 828, 829, 62 L.R.A. 666, 98 Am. St. Rep. 107, it is said: (Hn 2) "`Tort is the natural and habitual foundation of the action for the breach of the ordinary contract of carriage, and the declaration will be so construed, unless the facts of the case clearly show that the plaintiff has elected to sue on the contract.' Whittenton Mfg. Co. v. [Memphis O. River] Packet Company, C.C., 21 F. 896."
Again, it is said in Volume 4, Section 1714, in Elliott on Railroads, (2d Ed.): "There is a clear conflict in the cases on the subject of pleading a compliance with a condition in the contract of shipment that notice of damages must be presented within a fixed time after such injuries have been received or after the arrival of the shipment at destination. In states where this condition is deemed a condition precedent to the maintenance of an action the courts require the plaintiff to plead a compliance therewith. But the greater number of courts seem to view such stipulations as not strictly conditions precedent to actions but rather as limitations on the right of recovery and hence a matter of defense to be raised by the answer." And, in Section 1693 of the same text it is said: "But the election of the plaintiff to sue in tort does not prevent the carrier from setting up a special contract as a defense, if it is not invalid and by its terms relieves the carrier from liability." On this point, see also 41 Am. Jur. 351, Section 87; and page 403, Section 169.
At the next succeeding term of court, the defendant filed a demurrer to the declaration as amended, the principal ground of which was that the bill of lading attached as Exhibit "A" to the declaration contained the said Section 2 (b) hereinbefore quoted in this opinion, and that the declaration, as amended, did not allege that any claim for the damage was filed within the period of nine months prescribed in said provision, or that any claim has been filed at all. This demurrer was argued orally before the trial judge, and it appears that the arguments of counsel were taken by the court reporter, and are now incorporated in the record here on appeal. During the course of the arguments on this demurrer, the counsel for the plaintiff stated, among other things, that "The plaintiff intends to show that he entered into correspondence with the defendant railroad and with the other railroads within two or three months after a reasonable time for delivery of the property . . .; wrote them letters; they wrote him letters; and taking all of these letters together you (the carriers) are informed as to what was damaged; how much was damaged; what the claim was; where the accident occurred; how it occurred; and even the parties who had knowledge — the parties representing the railroads who had knowledge of these facts — this correspondence even shows that. . . . We contend and intend to prove that the railroad had such notice. It had sufficient notice. It knew there was damage to the rice; how much rice there was; where the damage is alleged to have occurred; knew who was putting in the claim; and we also intend to prove that the plaintiff tried to make a claim — a formal claim — . . .".
At the conclusion of the argument, the trial court overruled the demurrer on the ground that the amended declaration was an action in tort for damages because of alleged negligence, and that it was not therefore necessary for the plaintiff to allege a compliance with the contractual obligations contained in an exhibit to the declaration, attached to show the relation of shipper and carrier, as he would have been required to do if the suit had been on the contract.
Thereupon the defendant stated in open court that: "Now, if your Honor Please, it is our purpose to stand on the demurrer and not plead further, however we will be parties to any subsequent pleadings." The court then entered an order reciting the fact that the defendant had "chosen to stand on his demurrer and not to plead to plaintiff's declaration, . . .", and the order further recites that "The court therefore directs a verdict for the plaintiff and orders a writ of inquiry to determine the damages."
It appears, therefore, that although the plea of the general issue had not been formally withdrawn, the same was abandoned by the defendant, and the plaintiff was thereupon relieved of the burden of proving his case on the merits, except to the extent of the amount of damages under the writ of inquiry. Nor is it contended here that the trial court was in error in assuming that the defendant had chosen to stand on its overruled demurrer alone and was not desiring to be understood as pleading otherwise to the declaration. The result was that this action of the defendant served to preclude the plaintiff from making proof that the claim had been filed in writing within the time required by Section 2 (b) of the bill of lading, since the plaintiff had been awarded a directed verdict in his favor on liability by reason the fact that the defendant had declined to plead to the amended declaration after its demurrer thereto had been overruled.
Since we are of the opinion that the proof at the hearing on the writ of inquiry was ample to sustain the verdict of the jury, we discuss only the question as to whether the plaintiff was required in his declaration on an action in tort, based on the alleged negligence hereinbefore mentioned, to allege affirmatively a compliance with the provision of the bill of lading in question, or whether in such action he was entitled to treat the reference to the bill of lading therein as an exhibit to such declaration as being mere inducement to show the relationship between the parties out of which there arose the action in tort, — thereby leaving to the defendant the right or duty to plead as an affirmative defense to a recovery any alleged failure to file the claim within the time required by the terms of the bill of lading.
It should be again stated here that the declaration, as amended, charges that the damage complained of was the result of the negligent manner in which the boxcar was handled by the defendant, "and/or its agent," and the care being sideswiped, and that this was a proximate cause of such negligent handling. No fault or negligence is charged against any connecting, or a delivering, carrier. Hence, if the plaintiff could have proved that the damage was due solely to the negligence of the defendant "and/or its agents" in its special employ, there would have been no need for reliance by the plaintiff on the Carmack Amendment of June 29, 1906, to the Hepburn Act, 49 U.S.C.A., § 20, Par. (11), or any subsequent amendments thereto, insofar as the declaration on its face disclosed. However, if, at the trial, the plaintiff had been able to prove, as alleged, a delivery of the shipment to the defendant in good condition, and its receipt at the point of destination in a damaged condition, and had been unable to show on the line of what carrier the damage occurred, he would have thereby made out a prima facie case, and he could have then invoked in support of the liability of the initial carrier the provisions of the Carmack Amendment although he had not alleged its applicability. But, in order to do so, it would have been necessary for it to have been shown in evidence that the claim had been filed with the receiving or other carrier within the nine-month period prescribed by the requirement of the bill of lading in that behalf, as validly authorized under the Carmack Amendment and subsequent amendments to the Interstate Commerce Act. (Hn 3) In other words, if it had appeared either from the proof of the plaintiff or that of the defendant that the claim had not been filed within the time prescribed, the defendant would have been entitled to a directed verdict, and this would have been true without regard to whether or not the suit was on the contract or one in tort arising out of the breach of a duty owing by the carrier to the shipper.
Whatever may have been disclosed by the proof at the hearing on the writ of inquiry in the instant case as to any responsibility of a connecting, or the delivering, carrier for the damaged condition of the shipment, was shown after a directed verdict on liability of the defendant had been ordered, and we must therefore look to the sufficiency, or insufficiency, of the amended declaration as it stood at the time the demurrer thereto was overruled, and not to the proof under such writ.
In the case of Norfolk Truckers' Exchange v. Norfolk Southern R. Company, 116 Va. 466, 82 S.E. 92, it was held that the Carmack Amendment may be invoked although the declaration does not aver that any connecting carrier exists, or show any facts to allow the Carmack Amendment to operate but asserts a pure common law claim, where the facts, as shown in the evidence, make it clear that the cause of action comes within the sphere of the statute.
In the case of Chase Co. v. Atlantic Coast Line R. Company, 94 Fla. 922, 115 So. 185, it was held that the Interstate Commerce Act, being a Federal Act, supersedes all state laws affecting the carrier's liability for interstate shipments of property, and that (Hn 4) the Carmack Amendment to the Interstate Commerce Act, while defining the carrier's liability for interstate shipments, has no specifications as to pleadings in such causes. That in this situation the rules of pleading in common law cases prevailing in the state courts would control.
And, it was held in the case of Amber v. Davis, 1926, 221 Mo. App. 448, 282 S.W. 459, 464, that in an action against a carrier for damages to goods in transit that the fact that there was no notice given of the claim for damages as required by the bill of lading is a matter of defense, the Court saying: "It is insisted there was no notice of claim for damages as required by the bill of lading. This was a matter of defense, and there is no evidence in the record of the lack of such notice." The suit involved the application of the Cummins Amendment, 49 U.S.C.A. § 20, amending the Carmack Amendment. A different factual situation is involved, and it does not appear that there was a demurrer setting forth the failure to plead the giving of such notice, but the case does decide that the lack of such notice is a matter of defense.
The Carmack Amendment to the Hepburn Act of June 29, 1906, 49 U.S.C.A. § 20, Par. (11) as it existed after the amendment thereto of Feb. 28, 1920, 41 Stat. at L. 494, contained, among other provisos: "That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery." However, under the last amendment of the Carmack Amendment effective September 18, 1940, 54 Stat. at L. 916, 49 U.S.C.A. § 20 (11), the permissible period for filing of claims was extended from four months to nine months, and the prohibition against the requirements of claims by written notice, and bringing of action, where the damage was due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, was eliminated by the Cummins Amendment to the Carmack Amendment; and hence the giving of such notice "as a condition precedent to recovery", then became necessary whether the action be on contract or in tort.
And, in either case, the carrier is not permitted to waive the filing of the claim within the nine-month period provided for, where the Carmack Amendment and subsequent amendments thereto of the Interstate Commerce Act are applicable. It was so held in the case of Georgia, Florida, etc. R. Company v. Blish Milling Company, 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948, cited in the case of L.M. Kirkpatrick Company v. I.C.R. Company, 190 Miss. 157, 190 So. 692, 135 A.L.R. 607. Numerous other cases could be cited to sustain this view, but we deem it sufficient to say that (Hn 5) the purpose of the requirement is to afford the carrier an ample opportunity to make an investigation and determine upon which of the carriers of the shipment in interstate commerce is the responsibility for the loss or damage thereto; and the requirement being therefore for the benefit of each of the carriers the same cannot be waived by either. Then, too, an attempted waiver would be contrary to the public policy involved under Carmack Amendment.
(Hn 6) However, neither the Blish Milling Company Case, supra, nor the multiplicity of annotated cases under the Carmack Amendment, Title 49 U.S.C.A. § 20, Par. (11), covering pages 93 to 287 inclusive, and from pages 37 to 64 inclusive of the 1948 Pocket Part of the annotations to the said Amendment disclose any case holding that it is necessary for the plaintiff to allege in his declaration in a tort action compliance with the requirement as to filing the claim within the nine-months prescribed. Nor have we been able to find any case so holding.
As to whether or not it is necessary as a matter of pleading under our local statutes and procedure in an action in tort for the declaration to allege the performance of conditions precedent to recovery the same as if the suit were on contract, Section 1505, Code 1942, provides that: "In pleading the performance of conditions precedent, the plaintiff or defendant may aver generally that he duly performed all the conditions on his part; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition preceded the performance of which he intends to contest."
Therefore, if this were a suit on the contract, as it apparently was on the original declaration, it would have been necessary that the plaintiff should have at least averred generally that he had duly performed all of the conditions on his part, but he contends that the foregoing statute has application only to suits ex contractu, such as those on insurance policies and other contracts containing conditions precedent to the maintenance of a suit thereon or to liability thereunder.
Ordiarily there are no conditions precedent to be performed by a plaintiff in an action in tort which is based upon alleged negligence, and we are therefore, of the opinion that the foregoing statute which provides for pleading the performance of conditions precedent by general averment was intended to relate only to cotractual requirements that are to be precedently performed where the suit is upon a contract, and that Section 1464, Code 1942, is applicable here, reading as follows: "The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different."
Then, too, as was stated in the opinion in the Blish Milling Company case, supra [ 241 U.S. 190, 36 S.Ct. 544], the stipulations as to the filing of a claim under the Carmack Amendment within the period prescribed, "is not to escape liability, but to facilitate prompt investigation." In other words, it is the fact of filing the claim that enables the initial or other carrier to make the investigation and ascertain the responsibility for the loss or damage as among the respective carriers of an interstate shipment, and not the averment in a pleading that the claim has been filed within the period prescribed. The provision of the bill of lading here in question, as quoted in the fourth paragraph of this opinion, relates primarily to what must be done as a condition precedent to recovery — the filing of the claim and the bringing of the suit within the time required — and not to what shall be alleged in order to state a cause of action. It means that a remedy for the liability which arises when the goods are delivered in a damaged condition, after having been received by the carrier in good condition, cannot be enforced if it is shown that the claim was not filed, or if it appears from the declaration of the plaintiff, or from the proof under a plea of the defendant that the time for the bringing of the suit had expired. While it has reference to both the right and the remedy of obtaining a recovery for the loss or damage sued for, there is neither a requirement in the Carmack Amendment, and subsequent amendments thereto, nor in the bill of lading for pleading the performance of these conditions in order to state a prima facie case under Section 1464, supra, of our statutes on pleading, or otherwise. If such a requirement be deemed proper and reasonable in an action in tort, it could have been placed in the bill of lading, since this Federal statute as uniformily construed by the courts permits a carrier of an interstate shipment to impose any reasonable condition as to the right to maintain a suit for loss or damage in connection therewith. But, as hereinbefore stated, it is the filing of the claim and not the pleading of such filing that affords the time and opportunity to investigate the same.
We are, therefore, of the opinion that the action of the trial court in overruling the demurrer to the amended declaration, and in awarding judgment upon failure of the defendant to plead further was correct, and that the cause should, therefore, be affirmed.
Affirmed.