Northern Pacific Ry. Co. v. Wall, 241 U.S. 87 (1916)

Author: Justice McReynolds

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Northern Pacific Ry. Co. v. Wall, 241 U.S. 87 (1916)


For two reasons, I am unable to agree with the opinion of the Court.

First. If reiteration can establish a rule of law, it must be taken as settled that, in causes coming here by writs of error from state courts of last resort, we may not consider federal questions not specially set up below. And further, that such a question comes too late if raised for the first time after final decision in the highest state court by petition for rehearing unless this was actually entertained. St. Louis & San Francisco R. Co. v. Shepherd, 240 U.S. 240, 241; McCorquodale v. Texas, 211 U.S. 432, 437.

The following recitals are parts of the bill of lading:

Par. 6. The said shipper further agrees that, as a condition precedent to his right to recover any damages for loss or injury to any of said stock, he will give notice in writing of his claim therefor to some officer or station agent of the said company before said stock has been removed from the place of destination or mingled with other stock.

Par. 9. The terms, conditions and limitations hereby imposed shall inure to the benefit of each and every carrier, beyond the route of said company, to which the said property may come for purpose of transportation.

A rehearing was denied by the Supreme Court of Montana in this brief order: "Appellant’s motion for a rehearing herein heretofore submitted is, after due consideration by the court, denied." An elaborate written argument filed there in support of the petition, and incorporated in the record, states:

Appellant did not brief nor argue the reasonableness of the provisions of paragraph 6 of said contract from the view point considered by the court on page 3 to line 5 of page 7 of the opinion for the reason that no such question was raised by the plaintiff in the court below. In fact, the only grounds upon which the plaintiff attacked said provisions of the contract in his answer was that it

is unreasonable, unjust, burdensome, against the policy of the law, and contrary to the express provisions of chapter 138 of Session Laws of the State of Montana for 1909.

Not until his brief was filed in this court did such question appear in the case.

In view of the provision of paragraph 9 of the contract, also of plaintiff’s position in the court below, and of the fact that the defendant company has always considered that a notice served upon "some officer or station agent" of the connecting carrier at point of delivery, in the manner required by paragraph 6 of the contract, was a sufficient notice to show a compliance with such provision in an action brought against the initial carrier, we did not consider the question as presented for the first time in respondent’s brief of any importance, and did not even reply thereto in our oral argument.

Under section 9 of said contract, the terms and conditions thereof inure to the benefit of the connecting carrier. Therefore, such notice should be given to some officer or station agent of such carrier at point of delivery when damages are claimed.

The importance of this is apparent when considered in connection with the Carmack Amendment to the interstate commerce law.

The only ground for reversal now seriously relied upon is that the Carmack Amendment (June 29, 1906, § 7, c. 3591, 34 Stat. 584, 595) made "the connecting carrier, and therefore its agents, the agents of the initial carrier," and consequently the court below wrongly held, because no officer or station agent primarily employed by Northern Pacific Railway was shown to have been in Chicago, paragraph 6 was unreasonable and inoperative, and notice to a Burlington agent would not have been effective for any purpose. I fail to find that this point was definitely raised at any stage prior to the application for rehearing, and counsel for the railroad below seem to have been equally unsuccessful. If they had already wittingly relied upon it, they would hardly have burdened their argument for rehearing with an excuse for failure so to do. Former opinions imperatively demand that the foundation for our jurisdiction be laid in plain view, and not around a corner, where only an esoteric eye can detect it. Seaboard Air Line v. Duvall, 225 U.S. 477, 487.


The bill of lading itself is an elaborate document, bearing on its face evidences of care and deliberation in the formation of the conditions of the liability of the companies issuing it. The language is chosen by the companies for the purpose, among others, of limiting and diminishing their common law liabilities, and if there be any doubt arising from the language used as to its proper meaning or construction, the words should be construed most strongly against the companies, because their officers or agents prepared the instrument, and as the Court is to interpret such language, it is, as stated by Mr. Justice Harlan, in delivering the opinion of the Court in National Bank v. Insurance Co., 95 U.S. 673, 679: "Both reasonable and just that its own words should be construed most strongly against itself."

Tex. & Pac. Ry. v. Reiss, 183 U.S. 621, 626.

Apparently the bill under consideration followed a form adopted before passage of the Carmack Amendment, or at least before this was adequately understood. It is dated, "Belgrade, Montana, Station, January 2, 1912," purports to be an

agreement, made the day above stated between the Northern Pacific Railway Company, hereinafter called the "Company," and R. J. Wall, hereinafter called the "Shipper,"

and contains, in addition to paragraphs 6 and 9, copied above, the following ones:

Par. 7. It is further agreed and provided that no suit or action to recover any damages for loss or injury to any of said stock, or for the recovery of any claim by virtue of this contract, shall be sustained by any court against said Company unless suit or action shall be commenced within sixty (60) days after the damage shall occur, and on any suit or action commenced against said Company after the expiration of said sixty (60) days, the lapse of time shall be taken and deemed conclusive evidence against the validity of said claim, any statute to the contrary notwithstanding.

Par. 8. The said Company shall not be liable for the nondelivery or loss of, nor for injuries suffered by, any of the stock beyond the line of its own railroad.

Commenting on paragraph 6, the Supreme Court of Montana said (50 Mont. 127):

If the paragraph above means anything, it required the shipper to give notice in writing to an officer or station agent of the Northern Pacific Company. Notice to an agent of the Burlington road would not have been effective for any purpose. The Company mentioned in paragraph 6 is defined by the preamble to the contract to mean the "Northern Pacific Railway Company." Furthermore, if this provision is valid, it must be so construed as to serve some purpose. Its evident purpose was to enable the carrier to investigate the condition of the stock, and, to that end, the shipper was required to keep them separate until such investigation was made or a reasonable time therefor had elapsed. By the facts before us the reasonableness of the provision is to be tested. The contract is silent upon the question of service of the notice. If personal service was necessary, the shipper was required to hold the cattle at the Union Stock Yards until he could find an officer or station agent of the Northern Pacific Company. No particular officer or station agent is designated, and if this provision is to be taken literally, the shipper was required at his peril to assume the burden of finding some person who answered the description given. There is not a suggestion in the contract, in the pleadings, or the proof that the Northern Pacific Company had an officer or station agent at Chicago, or nearer than St. Paul, the eastern terminus of its road -- more than 400 miles away. If service could have been made by mail, plaintiff would have been in no better position, though doubtless a letter written to the station agent at Belgrade, and mailed postpaid at Chicago, would have sufficed for a literal compliance with the terms of this provision. But, in any event, plaintiff would have had to bear the burden of keeping his cattle on the cars or in the stockyards until the notice had been received and a reasonable time for inspection had elapsed. If the paragraph in question be construed to mean that a written notice mailed from Chicago to any station agent of the Northern Pacific Company, even the agent at Seattle, would suffice, it is senseless. If it is construed to mean that the shipper should travel from Chicago to St. Paul, and make personal service of the notice upon an officer or station agent of the Northern Pacific Company, then it is unreasonable to the point of being unconscionable. Whether the company had an officer or station agent at Chicago -- at a point where it has no road -- upon whom service of this notice could have been made was a matter peculiarly within its own knowledge, and for this reason the burden was upon it to make proof of such fact.

Manifestly its language has given rise to a very grave doubt; therefore I think the contract should be construed most strongly against the company, and with a view to preserve shipper’s rights. The construction placed upon paragraph 6 by the state supreme court, when sitting within surroundings designed to stimulate clear thinking, is diametrically opposed to the one now adopted. In such circumstances, it appears to me hardly reasonable to say that a stockman at a wayside Montana station was bound instantly to apprehend the true interpretation, notwithstanding any mental quickening which he may have received from a "rough wind" and a modest thermometer pointing to only "7 or 8 degrees below zero."

I am authorized to say that MR. JUSTICE McKENNA concurs in this dissent for the second reason stated.


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Chicago: McReynolds, "McReynolds, J., Dissenting," Northern Pacific Ry. Co. v. Wall, 241 U.S. 87 (1916) in 241 U.S. 87 241 U.S. 94–241 U.S. 98. Original Sources, accessed January 21, 2020,

MLA: McReynolds. "McReynolds, J., Dissenting." Northern Pacific Ry. Co. v. Wall, 241 U.S. 87 (1916), in 241 U.S. 87, pp. 241 U.S. 94–241 U.S. 98. Original Sources. 21 Jan. 2020.

Harvard: McReynolds, 'McReynolds, J., Dissenting' in Northern Pacific Ry. Co. v. Wall, 241 U.S. 87 (1916). cited in 1916, 241 U.S. 87, pp.241 U.S. 94–241 U.S. 98. Original Sources, retrieved 21 January 2020, from