DAVIS, AGENT,
v.
HENDERSON
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A cattle shipper sued an interstate carrier for failing to furnish a railroad car within a reasonable time, and the carrier defended by citing a tariff rule requiring written notice of car orders, which the shipper had violated by giving only oral notice. The Supreme Court reversed the judgment for the shipper, holding that a published tariff rule required by Interstate Commerce Commission approval cannot be waived by the conduct of a carrier's agent, even if the agent accepted oral notice in violation of the written notice requirement.
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Mr. Justice Brandéis delivered the opinion of the Court.
Henderson, a shipper of cattle, brought this suit in a state court of Arkansas against an interstate carrier then under federal control. The cause of action alleged was failure to furnish a car within a reasonable time after notice. The carrier defended on the ground that the shipper had not complied with a rule, approved by the Interstate Commerce Commission, and contained in its tariff, which provided that orders for cars must be placed with the local agent in writing. Written notice was not given. The plaintiff was permitted to testify that he had notified the station agent orally and that the latter had accepted his oral notice. The trial court refused to instruct the jury that the shipper could not recover without proving a notice in writing. Exceptions were duly taken. The plaintiff got the verdict; and the judgment entered thereon was affirmed by the highest court of the State. 157 Ark. 43. The carrier brought this writ of error; and, also, filed a petition for a writ of certiorari, consideration of which was postponed until the hearing on the writ of error. The former must be dismissed. Act of September 6, 1916, c. 448, §2, 39 Stat. 726. The writ of cer-tiorari is now granted.
There is no claim that the rule requiring written notice was void. The contention is that the rule was waived. It could not be. The transportation service to be performed was that of common carrier under published tariffs. The rule was a part of the tariff. Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, 197; Missouri, Kansas & Texas Ry. Co. v. Ward, 244 U. S. 383, 388; Davis v. Cornwell, 264 U. S. 560, 562.
Writ of Error dismissed.
Writ of Certiorari granted.
Judgment reversed.
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Citator
Cited By (17 total)
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Atl. Coast Line R.R. Co. v. Fla. Fine Fruit Co., 93 Fla. 161 (Fla. 1927)…ew: Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. Rep. 541; Missouri, K. & T. R. Co. of Texas v. Ward, 244 U. S. 383, 37 Sup. Ct. [*170] Rep. 617; Davis v. Cornwell, 264 U. S. 560, 44 Sup. Ct. Rep. 410; Davis v. Henderson, 266 U. S. 92, 45 Sup. Ct, Rep. 24. On the basis of the subject-matter of this opinion the judgment of the Civil Court of Record as affirmend by the Circuit Court of Duval County is quashed. Whitfield, P. J., and Buford, J., concur. Ellis, C. J., and Strum and…
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Louisville & Nashville R.R. Co. v. Chatters, 279 U.S. 320 (U.S. 1929)…. American. Ry. Express Co. v. Daniel, 269 U. S. 40; Western Union Tel. Co. v. Priester, 276 U. S. 252, 259; Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155; Davis v. Cornwell, 264 U. S. 560, and was not subject to waiver. Cf. Davis v. Henderson, 266 U. S. 92; see Georgia, Fla. & Ala. Ry. v. Blish Milling Co., 241 U. S. 190, 197. There was, therefore, no evidence of joint liability of the petitioners in the case,-and there could be no liability of either for injury to respondent occurring beyond its own…
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Ins. Co. of N. Am. v. Newtowne MFG. Co., 187 F.2d 675 (1st Cir. 1951)…nt view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed.” To the same effect see Southern Pacific Co. v. Stewart, 1919, 248 U.S. 446, 39 S.Ct. 139, 63 L.Ed. 350; Davis v. Henderson, 1924, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182; Chesapeake & Ohio Ry. Co. v. Martin, 1931, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; Bronstein v. Payne, 1921, 138 Md. 116, 120, 113 A. 648. The strictness with which the policy of the legislation is adhered to may somet…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Georgia v. Blish Milling Co., 241 U.S. 190 (U.S. 1916)
- Davis v. Cornwell, 264 U.S. 560 (U.S. 1924)
- Missouri v. Ward, 244 U.S. 383 (U.S. 1917)