Gooch v. Oregon Short Line Railroad Company/Dissent Hessin Clarke
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, 37 Sup. Ct. 499, 61 L. Ed. 1131, L. R. A. 1917F, 1128), entitled him to the rights and protection 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 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 6 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, 38 Sup. Ct. 354, 62 L. Ed. 820, Ann. Cas. 1918E. 469, 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.' The first proviso thus quoted was a second time re-enacted, 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 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, 22 L. Ed. 556, 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 live stock 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 Interst. Com. Com'n. R. 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 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 andbelieving 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 Interst. Com. Com'n. R. 417, 419, and In re the Cummins Amendment, 33 Interst. Com. Com'n. R. 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. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. [N. S.] 257), 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 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 it, unfortunately, he should die toward the end or very near the end of the 30 days, this astutely worded rule would cut out dis dependents from all right 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. 

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