1. An agreement in a drover's railroad pass, made pursuant to a
tariff filed with the Interstate Commerce Commission and
conditioning his right to recover for personal injuries upon the
giving of a written notice of claim, within thirty days after
injury, to the general manager of the carrier upon whose line the
accident occurs, is valid, at least where his injuries do not
disable him from complying with the condition. P.
258 U. S.
24.
2. Actual knowledge on the part of the railroad's employees is
no excuse for not giving the notice. P.
258 U. S.
24.
3. The action of Congress in fixing not less than 90 days for
giving notice of claims in respect of goods (Cummins Amendment,
March
Page 258 U. S. 23
4, 1915, c. 176, § 1, 38 Stat. 1196), is not a declaration of
public policy against allowing a less, though reasonable, time in
the case of personal injuries. P.
258 U. S.
24.
264 F. 664 affirmed.
Certiorari to a judgment of the circuit court of appeals
affirming a judgment of nonsuit in an action in the district court
for personal injuries.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for personal injuries caused by a collision on
the defendant's road. The plaintiff, the petitioner, shipped some
cattle from Bancroft in Idaho to Omaha in Nebraska, and got a
drover's pass to go with them as caretaker, free from charge other
than that made for carrying the cattle. In consideration of the
pass, the plaintiff agreed that the carrier should not be liable
for any injury to him upon the trip unless he or his personal
representative should within thirty days after the injury give
notice in writing of his claim to the general manager of the
carrier on which line the accident occurred. This agreement was
required in pursuance of a regulation that was part of the
defendant's tariff duly filed with the Interstate Commerce
Commission. The collision happened on November 24, 1917, and the
plaintiff was in a hospital for about thirty days under the care of
a doctor employed by the defendant, but was not disabled from
giving the notice. He failed to give it, however. The district
court directed a nonsuit, and its judgment was affirmed by the
circuit court of appeals. 264 F. 664. A writ of certiorari was
granted by this Court. 254 U.S. 623.
Page 258 U. S. 24
The only question is whether the requirement of notice in
writing was valid. The railroad company does not contend that it
could have exonerated itself altogether from liability for
negligence,
Norfolk Southern R. Co. v. Chatman,
244 U. S. 276, but
argues that a stipulation for written notice within a reasonable
time stands on a different footing, and of this there is no doubt.
Southern Pacific Co. v. Stewart, 248 U.
S. 446,
248 U. S.
449-450;
St. Louis Iron Mountain & Southern Ry.
Co. v. Starbird, 243 U. S. 592,
243 U. S. 602.
We perceive nothing in the form of the notice required to
invalidate the requirement. It would have been sufficiently
complied with if addressed to the railroad company, or to the
General Manager, care of the railroad company. Of course, too,
actual knowledge on the part of employees of the company was not an
excuse for omitting the notice in writing.
St. Louis, Iron
Mountain & Southern Ry. Co. v. Starbird, 243 U.
S. 592. The doubt that led to the granting of the writ
of certiorari was whether the prohibition of a requirement fixing
less than ninety days for giving notice of claims in respect of
goods established a public policy that would affect the present
case. Act of March 4, 1915, c. 176, § 1, 38 Stat. 1196. For,
although courts sometimes have been slow to extend the effect of
statutes modifying the common law beyond the direct operation of
the words, it is obvious that a statute may indicate a change in
the policy of the law although it expresses that change only in the
specific cases most likely to occur to the mind.
Johnson v.
United States, 163 F. 30, 32.
We are satisfied, however, that, in this case, the requirement
was valid and that the statute referred to should not affect what
in our opinion would be the law apart from it. The decisions that
we have cited show that the time would have been sufficient, but
for the statute, in respect of damage to goods, and the reasons are
stronger to uphold it as adequate for personal injuries. A
record
Page 258 U. S. 25
is kept of goods, yet even as to them, reasonably prompt notice
is necessary as a check upon fraud. There is no record of
passengers, and the practice of fraud is too common to be ignored.
Less time reasonably may be allowed for a notice of claims for
personal injuries than is deemed proper for goods, although very
probably an exception might be implied if the accident made notice
within the time impracticable. The statute cannot be taken to
indicate a different view. On the contrary, it is impossible to
suppose that Congress, when it was dealing with notices of claims,
and even with the claims of passengers for baggage, Act of August 9
1916, c. 301, 39 Stat. 441, 442, should not have thought of their
claims for personal injuries, and as it passed them by, we must
suppose that it was satisfied to leave them to the Interstate
Commerce Commission and the common law.
See Galveston
Harrisburg & San Antonio Ry. Co. v. Woodbury, 254 U.
S. 357,
254 U. S. 359;
Chicago, Rock Island & Pacific Ry. Co. v. Maucher,
248 U. S. 359,
248 U. S. 363. The
fact that the form prescribed by the Interstate Commerce Commission
in 1921 is silent upon the subject cannot affect the result.
Judgment affirmed.
MR. JUSTICE PITNEY was absent, and took no part in the
decision.
MR. JUSTICE CLARKE dissenting.
On November 24, 1917, petitioner, Gooch, when a passenger in the
caboose attached to the train in which respondent company was
carrying a carload of cattle for him, was seriously injured by a
collision with another train. Gooch was traveling on what has long
been known as a "drover's pass," which it is admitted in the answer
(as it must be,
Norfolk & Southern Railroad Co. v.
Chatman, 244 U. S. 276),
entitled him to the rights and protection
Page 258 U. S. 26
of a passenger for hire. It is also either admitted or not
denied that Gooch was so injured that, in about an hour and a half
after he was hurt, agents of the company took him to a hospital
about 40 miles from the scene of the accident, where he was under
the care of a physician employed by respondent for about 30 days,
until he left the hospital, but he returned for two treatments by
the company physician, and was finally discharged by him on January
15, 1918 (52 days after the accident). Five days after Gooch
entered the hospital, and while he was still in bed under the care
of the company's physician, the claim adjuster of the company
called upon him and asked him "if he was ready for a settlement."
To this Gooch replied that "he was not in a condition to talk with
him; that he was not ready for a settlement." About 10 days later,
the claim agent called on him again at the hospital and found him
sitting up in a wheeled chair and a conversation "similar to the
first one was held." But his case was dismissed below, and that
judgment is affirmed by this Court because be did not notify the
company in writing within 30 days of the accident that he would
claim damages for his injuries thus negligently caused.
The company alleged in its answer, and it is not denied, that,
pursuant to the provisions of an effective tariff, when he
delivered his cattle for transportation, Gooch signed a written
stipulation that no claim for personal injury caused by its
negligence should be valid or enforceable against the company
unless notice in writing was given to the general manager thereof
within 30 days after injury occurred.
It was admitted that the petitioner did not give the required
notice in writing, and the judgment of this Court is that the rule
requiring it was a valid and reasonable rule, and that it must be
enforced by affirmance of the judgment of the court below
notwithstanding the intimate knowledge which the company so
certainly had of Gooch's
Page 258 U. S. 27
injuries from an hour and a half after the accident, when it
sent him to a hospital.
From this conclusion of the Court, I dissent: (1) because such a
rule, as to property claims, has twice within six years been
specifically declared by acts of Congress to be contrary to a
public policy which I think it is the duty of this Court to
recognize and accept with respect to injuries to passengers, and
(2) because, in practice, the rule is gravely unjust and
discriminatory, and therefore unreasonable.
Of these in the order stated.
First. The petitioner claims the rule is unreasonable and void
under
Boston & Maine Railroad v. Piper, 246 U.
S. 439, but the Court holds it reasonable on two
grounds: (1) because the decisions of this Court show that the time
for notice was sufficient, and (2) because it is necessary to
protect carriers from fraudulent claims.
It is true that like and even shorter limitations with respect
to claims for property were sustained under special circumstances
in the two cases cited in the opinion of the Court and in several
others, but those cases arose before the Cummins Amendment to the
Interstate Commerce Act (38 Stat. 1196), which, after providing for
the issuing of a receipt or bill of lading for property received
for transportation by a carrier, contains this provision:
"
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 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 it by carelessness or negligence,
then no notice of claim nor filing of claim shall be required as a
condition precedent to recovery. "
Page 258 U. S. 28
The first proviso thus quoted was a second time reenacted, in
terms (with an addition with respect to computations of time named
therein), in the carefully considered Transportation Act, approved
February 28, 1920, 41 Stat. 456, 494, and the second proviso was
left unchanged by that act.
These two acts of Congress, providing that any rule, regulation,
or contract for limitation of notice to less than 90 days shall be
unlawful, are such unmistakable declarations of public policy as to
a shorter notice limitation, under any circumstances, that, in my
judgment, it should be applied to claims for personal injury, even
though the statute, in terms, applies only to damages to property,
unless there are cogent reasons for distinguishing the two classes
of claims from each other.
Congress should not have a 90-day
reasonable standard in such matters and this Court a 30-day
standard.
The opinion of the court gives this as a sufficient reason for
such distinction:
"The decisions that we have cited show that the time would have
been sufficient, but for the statute, in respect of damage to
goods, and the reasons are stronger to uphold it as adequate for
personal injuries. A record is kept of goods, yet even as to them
reasonably prompt notice is necessary as a check upon fraud. There
is no record of passengers, and the practice of fraud is too common
to be ignored."
With all deference, I submit that the reason thus given is
unsound, because the likelihood is much greater that fraudulent
claims will be made for injuries to goods than to persons, for the
reason that most goods are packed for shipment and whether they are
damaged or not cannot be discovered until they are unpacked after
having left the custody of the carrier, but it must be rare indeed
that a passenger can be injured except in the presence of some one
or more of the carrier's agents. Such living and alert
Page 258 U. S. 29
witnesses are a much better protection against fraud than the
indefinite and hurried record that is kept of goods.
In addition, the fact that cases involving notice limitations
with respect to goods have been appearing frequently in this Court
for 50 years -- ever since
Express Co. v.
Caldwell, 21 Wall. 264, was decided -- while
counsel agree that the case we are considering is the first of its
kind with respect to passengers to find its way here or, so far as
they can discover, into any court, is very strong evidence that
fraudulent claims for damages to goods are more frequent than for
injury to persons. If the carriers had needed and had used such
limitations on personal injury claims as much as they needed and
used them as to claims for damages to goods, some of them would
have found their way into reported cases long ere this. As a matter
of fact, however, this notice limitation upon passenger injury
claims is a recent innovation. It appears for the first time in the
livestock contract of the respondent, effective November 2, 1915 --
as if in defiant response to the Cummins amendment of the preceding
March. And in the Uniform Live Stock Contract, prescribed by the
Interstate Commerce Commission in its report of October 21, 1921,
no such limitation is permitted. Interstate Commerce Reports. In re
Domestic Bill of Lading and Live Stock Contract, 64 I.C.C. 357,
Appendix F. Under this prescribed form of contract, the latest word
on the subject, a 30-day limit, such as the court is approving,
would be as unlawful as it would have been under the statute had it
been applied to a claim for injury suffered by Gooch's cattle in
the same accident in which he was injured.
These considerations answer also the suggestion in the opinion
of the court that Congress must have considered claims by
passengers when considering claim for property and have decided
that they deserved different treatment. Such a limitation on
passenger claims had never
Page 258 U. S. 30
been heard of at that time, but we may be sure it will be found
in every railroad ticket promptly upon the publication of the
court's opinion in this case, unless prohibited by statute.
This Court is passing for the first time upon such a rule as we
have here and believing that no sound reasons have been given for
distinguishing between notice requirements for property and for
passenger claims, I think it is the duty of the court to accept the
rule of public policy prescribed by Congress and to apply it to
personal injury claims by declaring this 30-day rule too short to
be reasonable, and that it is therefore void under the
Piper case,
supra.
Second. That such a rule is unjust and discriminatory, and
therefore unreasonable, is very clearly shown by the operation of a
like rule in freight cases.
In the Matter of Bills of Lading, 29 I.C.C. 417, 419, and In re
the Cummins Amendment, 33 I.C.C. 682, 691, the Interstate Commerce
Commission says that, while the uniform bill of lading had long
contained a four months' limitation for presenting damage claims
for freight, no effort had been made by carriers generally to
enforce it until the
Croninger case was decided in
January, 1913 (
226 U. S. 226 U.S.
491), but that, in December of that year, they began to enforce it
literally "and thereby created a multitude of unjust
discriminations." Only about one year of such enforcement was
necessary to cause the enactment of the Cummins Amendment on March
4, 1915, which made an end of the matter where property was damaged
in transit by negligence, and in any case rendered a limitation to
less than 90 days unlawful.
That a notice rule so short as 30 days must result in
discrimination seems to me clear, also, because of that
characteristic of human nature, not sufficiently taken into account
by many courts. Persons and property are
Page 258 U. S. 31
usually transported so safely by rail that though of damage
rarely enters the mind of the occasional shipper or traveler, and
from this it results that rules, such as we have here, are not
read, or, if read, are not understood, couched, as they usually
are, in forms of expression about the meaning of which courts are
in constant disagreement, with the result that, while the large
shippers know of and keep within such rules and recover their
losses, for the occasional small shippers, they serve as a trap in
which, they are often caught and ruined. The Cummins Amendment is
the protest of the country against the discrimination and hardship
which many federal and state court decisions show resulted all over
the country, from the enforcement of such a rule as to property
claims.
To these reasons for holding the rule in this case unjust and
discriminatory must be added the certainty, inherent in its form,
that, if enforced, it will be an agency of grave injustice.
Not only is the requirement unusual and unreasonable that the
notice shall be given only to the general manager of a great system
of railway, remote and unknown as he must be to most of the patrons
of the road, but, as a shipper seldom accompanies his property -- a
drover is almost the only instance in which he does -- he is
usually at least in physical condition to make prompt claim if his
property is damaged, but many men are so badly injured in railway
accidents that they are wholly incapable of making claim in writing
within 30 days, and to prepare the way for a law suit is the last
thought of a man who is seriously injured and suffering. It is true
that the rule considerately permits the claim to be made by "the
heirs and personal representatives" of one who may be killed -- but
if, unfortunately, he should die toward the end or very near the
end of the 30 days, this astutely worded rule would cut out his
dependents from all right
Page 258 U. S. 32
to recover. The rule is a novel and cunning device to defeat the
normal liability of carriers, and should not be made a favorite of
the courts.
Believing, as I do, for the reasons thus stated, that the
thirty-day notice really is much more unjust when applied to
passenger than to property claims, and also because its application
will work as grave discrimination and injustice in other cases as
it so palpably does in this case, I think the rule of public policy
declared in the Cummins Amendment should be followed, and that the
judgment of the circuit court of appeals should be reversed.
I am authorized to say that the CHIEF JUSTICE and MR. JUSTICE
McKENNA concur in this dissenting opinion.