They contain the following clauses: Prescribed by Domestic Bill of Lading and Live Stock Contract, 64 I.C.C. 357, October 21, 1921, before our decision, April 13, 1925, in Barrett v. Van Pelt, 268 U.S. 85. See Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 343, et seq. Louis Ilfeld Co. v. Southern Pac. Co., 48 F.2d 1056, 1057. "Section 2. (c) Claims for loss, damage, or injury to live stock must be made in writing to the originating or delivering carrier or carriers issuing this bill of lading within six months after the delivery of the live stock . . . provided, that if such loss, damage or injury 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.
Mr. C.N. Davis, with whom Mr. C.W. Strickling was on the brief, for petitioner. Under the second proviso of the Act of Congress, filing of claim is dispensed with when damage results from carelessness or negligence. Barrett v. Van Pelt, 268 U.S. 85; Davis v. Roper Lumber Co., 269 U.S. 158. When a shipper shows delivery of goods to a carrier in good condition, and non-delivery or delivery to the consignee in damaged condition, there arises a prima facie presumption of liability.
Blish Milling Co. v. Railway, 241 U.S. 190; Railroad v. Dettlebach, 239 U.S. 588; Erie R.R. v. Shuart, 250 U.S. 465; Michigan Central v. Mark Owen Co., 256 U.S. 427; Brown v. Western Union, 85 S.C. 495; Jennings etc. Co. v. Virginian Railway, 137 Va. 207. The proviso is not limited to cases where there is actual physical damage. Barrett v. Van Pelt, 268 U.S. 85; New York etc. R. Co. v. Peninsula Produce Exchange, 240 U.S. 34; Norfolk Exchange v. Norfolk Southern R.R., 116 Va. 466. The proviso is a part of § 20 of the Interstate Commerce Act. We see no good reason why the words "loss, damage or injury" should be construed actual physical damage in one part of the section and not in another part.
In support of a descriptive reading, the merchants rely on a ninety-year-old Supreme Court case for the proposition that “[p]unctuation is a minor, and not a controlling, element in interpretation.” Barrett v. Van Pelt, 268 U.S. 85, 91, 45 S.Ct. 437, 69 L.Ed. 857 (1925); see also NACS, 958 F.Supp.2d at 102 (calling Congress's failure to use commas a “red herring”). This decision provides the merchants little help. Not only was it written long before the development of modern approaches to statutory interpretation, see U.S. National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 454–55, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (noting that although reliance on punctuation must not “distort[ ] a statute's true meaning,” “[a] statute's plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation”), but it addressed statutory language that, unlike here, contained a clearly misplaced comma, Barrett, 268 U.S. at 88, 45 S.Ct. 437 (interpreting a statute “so inapt and defective that it is difficult to give it a construction that is wholly satisfactory” without ignoring its comma).
Hoosac Tunnel Wilmington Railroad v. New England Power Co. 311 Mass. 667. Evidence was lacking as to many important material matters, including the extent of the other tasks confronting the carriers, the methods of communication which were open, the amount of freight and other traffic demanding attention, and the equipment and personnel available for the several purposes. See Barrett v. Van Pelt, 268 U.S. 85, 91-92; Belkin v. New York, New Haven Hartford Railroad, 109 Conn. 466, 468-469; Norris v. Savannah, Florida Western Railway, 23 Fla. 182; Standard Brands, Inc. v. Boston Maine Railroad, 29 F. Supp. 593. The defendant's duty included the requirement to make delivery within a reasonable time.
Punctuation marks do not have the same controlling force as evidence of legislative intention as do words. Punctuation is subordinate to context; and the presence or absence of a comma in a statute will not control its meaning where the language of the statute considered as a whole evidences an intention at variance with that which the presence or absence of the comma tends to indicate. 26 Am. Eng. Enc. Law, 2d ed. p. 631; 59 C.J. § 590, pp. 989-991; Re Peterson, 186 Iowa, 75, 172 N.W. 206; Dowling v. Board of Assessors, 268 Mass. 480, 168 N.E. 73; State ex rel. Jones v. Erickson, 75 Mont. 429, 244 P. 287; Barrett v. Van Pelt, 268 U.S. 85, 90, 91, 69 L. ed. 857, 860, 861, 45 S. Ct. 437; United States v. Lacher, 134 U.S. 624, 33 L. ed. 1080, 10 S. Ct. 625; United States v. Shreveport Grain Elevator Co. 287 U.S. 77, 82, 83, 77 L. ed. 175, 178, 179, 53 S. Ct. 42; Costanzo v. Tillinghast, 287 U.S. 341, 344, 77 L. ed. 350, 353, 53 S. Ct. 152. Corpus Juris (59 C.J. pp. 989-991) says: "Punctuation is no part of a statute and cannot control its construction against the manifest intent of the legislature, and the court will punctuate or disregard punctuation as may be necessary to ascertain and give effect to the real intent.
St. Louis-San Francisco Ry. Co. v. Cole, 174 Ark. 10, 294 S.W. 359. In each of the above cases the case of Barrett, Pres. of Adams Express Co., v. Van Pelt, 268 U.S. 85, 45 S.Ct. 437, 69 L.ed. 857, decided by the United States Supreme Court April 13, 1925, was discussed and relied on as controlling in suits involving interstate shipments. The United States Supreme Court, in discussing the act of Congress, among other things said:
As a part of its defense the defendant set forth the provisions of what is commonly called a uniform bill of lading, one provision of which is that claims for loss or damage must be made in writing to the originating or delivering carrier, issuing the bill of lading, within six months after delivery of the property, with the proviso "that, if such loss, damage or injury 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." This provision in the bill of lading was inserted pursuant to an amendment of the Interstate Commerce Act, which, as construed in Barrett v. Van Pelt, 268 U.S. 85, 45 S.Ct. 437, reads as follows: "Provided, further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise, a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: provided, however, 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."
L. Glenn, Jr., for appellants, cite: "Conversion:" 28 Enc. L. (2nd Ed.), 679, 681, 691, 695, 705; 26 R.C.L., 1098, 1110; 1 Bail., 546; 11 Rich., 267; 26 S.C. 112. Applies to carriers: 10 C.J., 271; 254 U.S. 538; 65 L.Ed., 392; 77 S.E., 647; 45 L.R.A. (N.S.), 19; 144 S.W. 1196; 170 S.W. 572: 119 S.W., 642; 22 L.R.A. (N.S.), 1107; 108 S.C. 186; 142 N YS., 533; 11 S.W. 511; 28 L.R.A. (N.S.), 1088; 4 A.L.R., 1285. Liability of carriers for freight hauled: Sec. 8563, U.S., Comp. Sts; 240 U.S. 632; 60 L.Ed., 836; 256 U.S. 427; 65 L.Ed., 1032; U.S. Comp. Sts., Sec. 8604-A, 3 Wood on R.R. (2nd Ed.), 1877, Secs. 424, 427; Id., 1910, Sec. 445; 22 L.R.A. (N.S.), 1107; 83 U.S. 218; 21 L.Ed., 297; Am. Rep., 564; 4 R.C.L., 688-690; 219 U.S. 186; 55 L.Ed., 167; 236 U.S. 157; 59 L.Ed., 520; 243 U.S. 592; 61 L.Ed., 925; 152 N.Y.S., 156; 82 S.C. 236; 76 S.C. 9; Fed. Sts. Ann. (1st Ed.), 1916 Supp., 549; 63 S.E., 415; 62 So., 698; 115 S. W,. 664; 197 N Y S., 704; 17 L.R.A. (N.S.), 640. Filing of claims: 268 U.S. 85; 69 L.Ed., 857; 250 U.S. 465; 63 L.Ed., 1088. Whether claim filed within required time, question for jury: 22 Enc. L. (2nd Ed.), 1252; 1 A.L.R., 900; 111 U.S. 185; 28 L.Ed., 395; 7 Am. Rep., 536; 56 A.S.R., 187. Whether appellants entitled to recovery question for jury: 264 U.S. 281; 68 L.Ed., 685; 10 C.J., 338; 176 S.W., 325. Messrs. McDonald McDonald, and Frank G. Tompkins, for respondent, cite: Any transactions relating to interstatecommerce or consequent rights and liabilities, governed bydecisions of the Federal Courts: 240 U.S. 612; 60 L.Ed., 825; 242 U.S. 148; 61 L.Ed., 210; 258 U.S. 369; 66 L.Ed., 665. Limitation of liability in bills of lading: 263 U.S. 19; 68 L.Ed., 140; 241 U.S. 190; 60 L.Ed., 949; 240 U.S. 34; 60 L.Ed., 511; 268 U.S. 85; 69 L.Ed., 857; 266 U.S. 92; 69 L.Ed., 182; 130 S.E., 647; 242 Pac., 151; 240 U.S. 632; 60 L.Ed., 836; 270 S.W. 597. Waiver of tariff rules: 266 U.S. 92; 56 Int. Com Comm. R., 4391; Tariff Law Series, 1921, 2019, P., 317, 318; 4 Consolida
Where the shipper has entered into a stipulation in the contract of shipment, providing that unless notice of injury is filed within ninety days and a claim in writing filed within four months, and he has failed to serve such notice, or to file such claim, he may only recover for damages caused by the negligence of the carrier. ( Hailey v. Oregon Short Line R. Co. (D.C.), 253 Fed. 569; Barrett v. Van Pelt, 268 U.S. 85, 45 Sup. Ct. 437, 69 L. ed. 857.) Where the shipper agrees to feed the stock in transit, manifestly the carrier would be obliged to pay for the feed only in case of negligent delay.