1. The first Cummins Amendment to § 20 of the Act to Regulate
Commerce, concerning the duty of carriers to issue receipts or
bills of lading for interstate freight and their liability for loss
or damage, provides:
"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."
Held that the words "carelessness or negligence"
qualify the whole clause; "damaged" should be read "damage," and
the comma after "unloaded" should be omitted. P.
268 U. S.
87.
2. Thus read, carelessness or negligence is an element of each
case of loss, damage, or injury included in the clause, and, in
such case, carriers are not permitted to require notice or filing
of claim as a condition precedent to recovery. P.
268 U. S.
91.
3. In an action against an express company for damages due to
delay, the shipper, not having given notice and filed a claim, as
required by the uniform express receipt, must prove the delay was
due to the carrier's carelessness or negligence. P.
268 U. S.
91.
205 App.Div. 332 reversed.
Certiorari to a judgment of the New York Supreme Court,
Appellate Division, affirming a judgment for damages based on delay
of an express company in transporting and delivering a carload of
eggs.
Page 268 U. S. 86
MR. JUSTICE BUTLER delivered the opinion of the Court.
February 23, 1918 at Louisville, Kentucky, respondent's assignor
delivered to the Adams Express Company a carload consisting of 522
cases of fresh eggs for transportation to New York City, there to
be delivered to Harold L. Brown Company. The shipment was so
delivered March 4, 1918. This action was brought to recover damages
for loss in market value due to delay in transportation. At the
trial, respondent contended that the express company was bound to
make delivery of the eggs within a reasonable time, which he
claimed to be not more than 30 hours. It was shown that the price
of eggs in New York declined between the time respondent claimed
delivery to consignee should have been made and the time when it
was made. The trial court directed a verdict in favor of
respondent. A judgment was entered thereon. Petitioner appealed. It
was affirmed by the Appellate Division. 205 App.Div. 332. Leave to
appeal to the Court of Appeals of New York was denied. This Court
granted certiorari. 263 U.S. 697.
The case involves the construction of a provision of the Act of
Congress of March 4, 1915, known as the First Cummins Amendment, c.
176, 38 Stat. 1196, 1197, amending § 20 of the Act to Regulate
Commerce of February 4, 1887, c. 104, 24 Stat. 386, as amended by §
7 of the Act of June 29, 1906, c. 3591, 34 Stat. 593, 595. Chapter
176 requires any common carrier receiving property for
transportation in interstate commerce to issue a receipt or bill of
lading therefor, and makes it liable to the lawful holder thereof
for any loss, damage, or injury to such property, and contains
certain provisos, the last two of which are:
"
Provided further, that it shall be unlawful for any
such common carrier to provide by rule, contract, regulation,
Page 268 U. S. 87
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."
At the time of the delivery of the property for transportation,
the express company issued and delivered a receipt or bill of
lading therefor, which contained the following:
"Received from Ky. Creameries the shipment hereinafter listed,
subject to the classification and tariffs in effect on the date
hereof, which shipment the company agrees to carry upon the terms
and conditions of the uniform express receipt in effect on date of
shipment."
Section 7 of the uniform receipt contains the following:
"Except where the loss, damage or injury complained of is due to
delay or damage while being loaded or unloaded, or damaged in
transit by carelessness or negligence, as conditions precedent to
recovery, claims must be made in writing to the originating or
delivering carrier within four months after delivery of the
property or, in case of failure to make delivery, then within four
months after a reasonable time for delivery has elapsed, and suits
for loss. damage or delay shall be instituted only within two years
and one day after delivery of the property, or, in case of failure
to make delivery, then within two years and one day after a
reasonable time for delivery has elapsed."
Official Express Classification No. 25, filed May 18, 1917,
I.C.C. A-2130.
No claim was made or filed within four months after the delivery
of the property to the consignee. We are required to decide whether
the case is one where notice or filing of claim may be required as
a condition precedent to recovery. If the first clause of the
above-quoted provision
Page 268 U. S. 88
stood alone, the rule established would be clear. But the
purpose of the second clause is to except some cases from the
application of the general rule and to provide that, as to them, no
notice of claim nor filing of claim shall be required. The language
and structure of the second clause is so inapt and defective that
it is difficult to give it a construction that is wholly
satisfactory.
* The Appellate
Division held that the requirement of the receipt for the filing of
claims within four months after delivery was prohibited by law, and
was without force or effect. The court quoted from its opinion in
Bell v. New York Central Railroad Co., 187 App.Div. 564,
566:
"It will be noted that both the Cummins Amendment and the bill
of lading provision make a double classification of claims, to-wit:
(1) those for loss due to delay or damage while being loaded or
unloaded, or damaged in transit, which we will call transit claims,
and (2) those for loss otherwise sustained, which we will call
nontransit claims. The Cummins Amendment permitted the carrier to
require as a condition precedent to recovery the filing of a
nontransit claim within four months, and in such cases to require
suit to be instituted within two years. In the case of transit
claims it forbade the carrier to require the filing of a claim as a
condition precedent to recovery but authorized a requirement, that
suit be instituted within two years."
Respondent supports this construction. But we think it is not
satisfactory. The language does not require such a classification.
The court suggests no reason
Page 268 U. S. 89
for such a division, and there seems to be no substantial
considerations supporting it. Apparently, no effect is given the
phrase, "by carelessness or negligence."
The petitioner contends that the word "delay" is to be read with
"while being loaded or unloaded." This would make two classes of
claims excepted from the general rule. One would include claims for
loss due to delay or damage while being loaded or unloaded. The
other would include those for damage in transit due to carelessness
or negligence. But it is not apparent why claims for loss, damage
or injury due to delay in transit should not be included in the
same class as claims for damages due to delay while being loaded or
unloaded. And no good reason is shown for the elimination of the
element of carelessness or negligence from the definition of one
class, while including it in the definition of the other.
It must be assumed that Congress intended to make the
classification on a reasonable basis having regard to
considerations deemed sufficient to justify exceptions to the rule.
The element of carelessness or negligence is important. There are
such differences between liability without fault and that resulting
from negligence that Congress, upon good reasons, might permit
carriers to require notice and filing of claim within the specified
times where the carrier is without fault, and forbid such a
requirement in the cases referred to where the loss results from
the carrier's negligence. Notice and filing of claim warns the
carrier that there may be need to make investigations which
otherwise might not appear to be necessary, and if notice of claim
is given and filing of claim is made within a reasonable time, it
serves to enable the carrier to take timely action to discover and
preserve the evidence on which depends a determination of the
merits of the demand. As to claims for damages not due to
negligence, in the absence of notice, there may be no reason
Page 268 U. S. 90
for anticipating demand or to investigate to determine the fact
or extent of liability. But as to damages resulting from
carelessness or negligence, it reasonably may be thought that the
carrier has such knowledge of the facts or has such reason to
expect claim for compensation to be made against it that the
carrier should not be permitted to exact such notice and filing of
claim as a condition precedent to recovery. No other basis of
classification seems as well supported in reason as the element of
carelessness or negligence. And that basis is substantially
sustained by the language of the clause. The elimination of the
final "d" in "damaged" and the omission of the comma after
"unloaded" would make the clause read as follows:
"Provided, however, that, if the loss, damage, or injury
complained of was due to delay or damage while being loaded or
unloaded or damage in transit by carelessness or negligence, then
no notice of claim nor filing of claim shall be required as a
condition precedent to recovery."
The context does not permit the use of the word "damaged" or
allow any meaning to be given to it. Its presence makes a
grammatical defect, and embarrasses interpretation. It seems
obvious that the word "damage" was intended. That word is in
harmony with the context, as well as with the probable intention of
Congress. The final "d" may be eliminated. The intention of the
lawmaker constitutes the law.
Stewart v.
Kahn, 11 Wall. 493,
78 U. S. 504.
See Smythe v.
Fiske, 23 Wall. 374,
90 U. S. 380.
Being satisfied of the legislative intention, the court will not be
prevented from giving that intention effect by a too rigid
adherence to the very word and letter of the statute.
Oates v.
National Bank, 100 U.S.
239,
100 U. S. 244.
Having found that the word "damage" was intended to be used, the
court applies the rule that:
"A thing which is within the intention of the makers of a
statute is as much within the statute as if it were within the
letter,
Page 268 U. S. 91
and a thing which is within the letter of a statute is not
within the statute unless it is within the intention of the
makers."
People v. Utica Insurance Company, 15 Johns. 358, 381;
Hawaii v. Mankichi, 190 U. S. 197,
190 U. S.
212.
The comma after the word "unloaded" is not entitled to have any
weight as evidence of the legislative intention as against the
considerations supporting the extension of the qualifying effect of
the words "by carelessness or negligence" to all claims referred to
in the second clause.
"Punctuation is a minor, and not a controlling, element in
interpretation, and courts will disregard the punctuation of a
statute, or repunctuate it, if need be, to give effect to what
otherwise appears to be its purpose and true meaning."
Chicago, M. & St. P. Ry Co. v. Voelker, 129 F. 522,
527.
We hold that the second clause must be read as above indicated,
that carelessness or negligence is an element in each case of loss,
damage, or injury included therein, and that, in such cases,
carriers are not permitted to require notice of claim or filing of
claim as a condition precedent to recovery.
See Hailey v.
Oregon Short Line R. Co., 253 F. 569.
No notice of claim having been given and no claim having been
filed as required by the uniform express receipt, it was incumbent
upon the respondent to show loss, damage, or injury due to delay by
carelessness or negligence of the company. The carload of eggs was
delivered to the company at Louisville February 23, and was
delivered by the company to the consignee at New York, March 4. It
was shown that the car was taken out of Louisville, February 23 on
a train of the Pennsylvania Railroad Company, and that it should
have gone to Pittsburgh without transfer. There was no other
evidence in respect of the intended or actual movement of the car.
There was evidence tending to show that the ordinary time of a
passenger train on the Pennsylvania Railroad
Page 268 U. S. 92
between Louisville and New York was 25 or 26 hours. But there
was no evidence that such shipments usually moved, or that this
shipment could have moved, on any train making that time, or to
show the time usually made by trains upon which such shipments were
or could be moved. There was no evidence to show what was the
customary or usual time for the transportation and delivery of such
shipments. The trial judge held that such reasonable time was not
more than 30 hours. We think the evidence was not sufficient to
sustain that finding, or to show what was a reasonable time for
such transportation and delivery. It follows that there was nothing
to give rise to any inference or presumption that failure to
deliver at destination within 30 hours was due to negligence, or to
support a finding that there was any loss or damage due to delay
caused by carelessness or negligence of the company. The evidence
of market value of such eggs in New York City was as follows:
February 25th, 53 cents per dozen; February 26th, 52 to 53 cents;
March 1st, 36 cents; March 2d 35.5 to 36 cents; March 4th, 36.5
cents. The eggs in question were sold March 4th -- some for 35
cents, some for 35.5, and the rest for 36.5 per dozen. There was no
evidence of market value at any other time. The court directed a
verdict in favor of respondent for $3,396.26, the difference
between the amount for which the eggs were sold March 4th and their
value calculated at 53 cents per dozen, the price prevailing
February 25th, with interest. The date when the eggs should have
been delivered to consignee and the market value at that time were
essential to respondent's case. In the absence of either, the
amount of the loss, if any, cannot be determined. The judgment
given cannot be sustained.
Reversed and remanded, for further proceedings not
inconsistent with this opinion.
*
See Hailey v. Oregon Short Line R. Co., 253 F. 569;
Gillette Safety Razor Co. v. Davis, 278 F. 864;
Conover v. Wabash Railway Co., 208 Ill.App. 105;
Conover v. Baltimore & Ohio Southwestern R. Co., 212
Ill.App. 29;
Bell v. New York Central Railroad Co., 187
App.Div. 564;
Henningsen Produce Co. v. American Ry. Express
Co., 152 Minn. 209;
St. Sing v. Express Co., 183 N.C.
405;
Cunningham v. Missouri Pacific R. Co. (Mo.) 219 S.W.
1003;
Lissberger v. Bush Terminal R. Co., 197 N.Y.S. 281;
Allen v. Davis, (S.C.) 118 S.E. 614.