APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. HARTEL, JR., Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendants-appellants, United Van Lines, Inc., and Three Way Van Lines Company, Inc., appeal from a judgment by the Circuit Court of Lake County entered after a bench trial in favor of plaintiff-appellee, Paul Peters, for $3,400 plus costs.
Plaintiff's complaint alleged that defendants were responsible for the loss during delivery of certain electronic equipment. Defendants answered and offered the affirmative defense that plaintiff had failed to file a written notice of claim with either defendant in accordance with section 6 of the bill of lading which provided, among other things, that as a condition precedent to recovery, a claim must be filed in writing with the carrier within nine months after a reasonable time for delivery has elapsed. Plaintiff, in his answer to the affirmative defense, alleged, first, that within nine months, namely, on the date of delivery, defendant's agent, in writing, acknowledged that certain goods were missing from the truck and second, that at no time has the carrier disallowed the claim.
Defendants filed a motion for summary judgment again on the theory that they received no written claim with regard to the alleged loss which complied with the terms of section 6 of the bill of lading and Rule 19 of the Tariff Regulations of the Interstate Commerce Commission. Plaintiff countered with a response alleging that there was a question of fact as to when he first sent a written communication to the defendants. The trial court found that there was a controversy regarding the facts and therefore it denied the motion for summary judgment. *fn1
On August 2, 1974, defendant carrier United Van Lines entered into a contract with Altec, the shipper, to move certain electronic equipment from Orange County, California, to Zion, Illinois. The shipment was delivered to plaintiff as consignee on August 12, 1974. When the goods were unloaded, the uncontradicted testimony is that four items of electronic equipment were missing. Plaintiff initially refused shipment and instructed defendant to reload his truck. Plaintiff testified that after he described the modules to the truck driver, the driver stated that he had seen them on the truck he removed the goods from. Plaintiff also testified that the driver made numerous telephone calls in an attempt to locate the missing equipment. However, Mr. Tom Brown, an employee of United Van Lines, testified that there was no indication in their files that the driver called United Van Lines.
Plaintiff further stated that the driver assured him that if he paid the $158.63 freight bill and signed the bill of lading, Three Way Van Lines would see that he received the four missing pieces. Upon this representation, plaintiff paid the charges and accepted shipment. On the descriptive inventory form, supplied by the driver, there appears a notation that the four items are "missing" and the signatures of the driver, Denny Etter, and the plaintiff. Brown testified that the inventory sheet was received on August 23, 1974, but that no action was taken with respect to the missing merchandise; he also testified that there is no procedure embarked upon once such a notation is made on shipping documents.
Plaintiff and his wife, Beverly Peters, both testified that the next contact with United Van Lines or Three Way Van Lines was approximately 60 days later, when an additional bill for $53 was received. Plaintiff also stated that in the period from September 1974 to September 1976 he made approximately six telephone calls to defendants. In response to the subsequent billing, Mr. Peters testified that he wrote a letter requesting an explanation of the additional charge and the location of the four missing modules. Mrs. Peters testified that she sent the letter sometime in late September or early October of 1974; Mr. Peters testified that the letter was sent less than 30 days after the first bill came. Both Mr. and Mrs. Peters testified that it was customary to keep copies of correspondence. Although Mr. Peters admitted that he did not have a copy of the letter, he suggested that it had been destroyed with some of his other records in a fire at the plant.
The alleged first letter was referred to in a letter written by Mrs. Peters on June 8, 1976. The June letter, among other things, refers to the notation on the descriptive inventory sheet and states that the four items are "STILL MISSING." Brown admitted that Three Way Van Lines received the copy of the June letter, but stated that there is nothing in their file to indicate that either United Van Lines or Three Way Van Lines had received a claim on this shipment.
The trial testimony of Mr. and Mrs. Peters is in partial conflict with testimony contained in earlier depositions. In his deposition, Mr. Peters stated, in essence, that he was not aware of any written demands on the defendants with regard to this transaction; that he couldn't remember if there was any writing other than the letter by his wife dated June 1976; and that he didn't know if at any time he had made a written claim for the missing items. In her deposition, Mrs. Peters testified that she couldn't recall when she wrote to the company for the first time and that she didn't know when she wrote the first letter what it said, to whom it was sent, or whether the records were destroyed in the fire.
In a memorandum opinion, the trial court found that plaintiff advised defendants in writing shortly after the September 24, 1974, billing that the items noted as missing on the delivery inventory were still missing. In sum, the trial court found that this and other communications to the defendants gave or should have given them actual knowledge that plaintiff was holding them responsible for specific goods lost in specific shipment. The court further found that the defendants were not prejudiced by plaintiff's failure to specify a dollar amount of the claim.
Three issues are presented by this appeal: (1) whether the trial court erred in determining that appropriate notice of the missing items was submitted by plaintiff to defendants, (2) whether the conduct of defendants estops them from relying on the claim requirement, and (3) whether plaintiff's cause of action is barred by the statute of limitations.
Section six of the bill of lading for the shipment in question provides as follows:
"As a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face hereof, or in case of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice. Where a claim is not ...