Pioneer Fruit Co. v. Southern Pacific Co.

RICHARDS, J.

This action was instituted by the plaintiff to recover from e the defendant the sum of $2,576.25, damages alleged to have been sustained by the plaintiff in

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connection with the shipment of a carload of cherries from San Jose, California, to Boston, Massachusetts, during the month of June, 1913, and which were consigned by the plaintiff to a corporation known as California Fruit Distributors through the defendant as shipper, upon a bill of lading issued in compliance with the Interstate Commerce Act. The plaintiff’s claim was based upon two alleged breaches of the contract of shipment in that, first, the defendant allowed the car in which these cherries were transported to be insufficiently iced; second, that the defendant permitted an unreasonable delay to occur in the shipment of the cherries, as a result of both of which alleged breaches of the terms of shipment the cherries arrived in Boston in a damaged condition to the plaintiff’s detriment in the sum for which suit was brought. The defendant denied specifically the averments of the complaint as to any breach of its duty as a carrier in the premises, and also pleaded that the plaintiff’s cause of action was barred under the provisions of subdivision 1 of section 339 of the Code of Civil Procedure, and was also barred under the provisions of section 3 of the bill of lading requiring claims for damages for loss or injury to goods shipped to be made in writing to the carrier at the point of delivery or of origin within four months after the delivery of the property, which claim the defendant avers was not so presented.

Upon the trial of the issues thus framed the trial court made its findings in favor of the plaintiff except as to the amount of its said damages, which it fixed at $574. The defendant prosecutes this appeal.

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The main point urged by the appellant relates to the bar of the statute of limitations under the section of the code above quoted. It is argued by it that this is not an action upon a contract, obligation, or liability founded upon an instrument in writing, and hence that the action must have been commenced within two years after the liability arose, and that not having been so commenced it is barred under said section of the code. In order to support this proposition the appellant argues that the bill of lading issued by the defendant to the plaintiff upon the receipt of these goods for shipment was not the contract between the parties, but was only a receipt for the goods orally consigned to the defendant for shipment; and that such consignment