December 28. 1918 



HORTICULTURE 



637 



of carelessness in not making claim 

 in xcriting within the four months, A 

 large number of those losses happen 

 In this way: A man expects five bar- 

 rels of something and only four come 

 through. He gives rerba/ notice to 

 the agent at the delivering point and 

 the agent promises to look it up. 

 "Looking up" claims against a rail- 

 road is a matter of months, often 

 years, and before a consignee knows 

 it, months have passed without col- 

 lection. During this period he may or 

 may not have jogged the agent's mem- 

 ory, always getting a promise from 

 the agent to go after it. 



Finally, nothing happening, the con- 

 signee decides to sue and is met right 

 at the outset by the defense that he 

 has not made his claim in writing 

 within four months. Of course the 

 railroad knows about that clause and 

 never loses sight of it. If it can 

 keep you dragging along for more 

 than four months without anything 

 written having been filed, it is safe 

 and need never pay your claim. If I 

 had one-hundredth part of the money 

 that has been lost through careless- 

 ness on this one point, I should never 

 need to write another word. 



Under the old law It was sometimes 

 possible for the consignee to get 

 around the tact that he had not filed 

 w^ritten claim within four months, by 

 pleading that the railroad, by accept- 

 ing his verbal claim and investigating 

 it, had led him to believe that no 

 written claim would be necessary; in 

 other words, that the railroad had 

 waived the requirement as to written 

 claim. 



The law now, however, is that the 

 railroad cannot waive the require- 

 ment, even though it were willing to, 

 and that nothing that it does, not 

 even an express agreement to waive, 

 could be allowed to constitute waiver. 

 The reason for this is that under the 

 law railroads are supposed to be 

 operated with absolute equality to all 

 — equality as to rate, and equality as 

 to privilege. If a railroad were al- 

 lowed to waive a requirement as to 

 one shipper which it could enforce as 

 to another, the equality which the law 

 aimed at would be destroyed. 



The Pennsylvania case which I 

 have referred to (Concordia Co. vs. 

 Pennsylvania R. R. Co., 69 Pa. Su- 

 perior Court, 361) decides flatly that 

 for the reason given above a railroad 

 cannot waive the provision requiring 

 written notice of loss or damage with- 

 in four months. I reproduce the fol- 

 lowing from the decision: — 



Plaintiff sues to recover the value of 

 certain ^ooda delivered to the defendant 

 for transportation from Phialdelphia to 

 Montreal. The bill of lading contained a 

 stipulation that "claims must be made In 

 writing to the carrier at the point of de- 

 livery or at the point of origrin within four 

 months after delivery of the property, or. 

 In r-ase of failure to make delivery, then 

 within four months after a reasonable time 

 for delivery has elapsed." By agreement 

 of counsel it was admitted the goods were 

 totally lost in transit and that the period 

 In which notice must be given ended on 

 November 26. 1915. No written notice of 

 claim was sent to the defendant, but It 

 was argued by the plaintiff that the de- 

 fendant had by its conduct, waived the re- 

 quirement of a writing. The circumstances 

 and dealings of the parties were proved 

 and the question was left to the jury 

 whether they showed a waiver of written 

 notice. The jurv found for the plaintiff, 



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The only question now raised is, can the 

 requirement of written notice (In the bill 

 of lading) be waived by the carrier? 



It will not be necessarv to enter into an 

 elaborate review of the Federal legislation 

 of recent years fixing the status of shipper 

 and carrier nor of the manv decisions of 

 our highest legal tribunal expounding and 

 appl.vmg such legislation to the many 

 questions that have arisen thereunder. 

 A study of these cases and a brief refer- 

 ence to but two of the most recent ones 

 convinces us that the question involved in 

 the present case must be disposed of as a 

 Federal question, and necessarily our 

 judgment must follow the path marked 

 out by the highest authority. • • . • The 

 parties could not waive the terms of the 

 contract under which the shipment was 

 made pursuant to the Federal act; nor 

 could the carrier by its conduct give the 

 shipper the right to Ignore these terms 

 which were applicable to that conduct, and 

 hold the carrier to a different responsi- 

 bility from that fixed bv the agreement 

 made under the published tariffs and regu- 

 lations. A different view would antagonize 

 the plain policy of the act and open the 

 door to the very abuses at which the act 

 was aimed. 



This decision is most important, in 

 that it means that a man who has a 

 claim against a railroad for lost or 

 damaged goods can no longer rely 

 upon the apparent willingness of the 

 company, or even upon its promise, if 

 it made one. to adjust the matter 

 wathout written claim filed within 

 four months. He must file his claim, 

 and in writing, within four months, or 

 he is gone. He would be gone even 

 if the railroad did not defend on that 

 ground in court, though of course it 

 would do so. because the court would 

 itself be obliged to take notice of the 

 failure to comply with the bill of 

 lading. 



(Copyright. December, 1918, bv Elton 

 J. Buckley.) 



A BEAUTIFUL STATE CAPITAL. 



It is the good fortune of Harrisburg to 

 be the capital of a State which though too 

 often sadly misgoverned. Is still disposed 

 to do the handsome thing by its seat of 

 government. This fact Is brought out 

 strikingly in the sketches published of the 

 proposed improvement of the extension of 

 Capitol Park, which presents a remarkable 

 opportunity for the beautiflcation of the 

 city on the Susquehanna. The ground em- 

 braced in this extension has been pur- 

 chased bj' the Commonwealth at an ex- 

 pense of over $2,000,000, and cleared of the 

 very shabby buildings which long covered 

 it. The removal of these gives a space of 

 nearly ?J0 acres In the rear of the Capitol, 

 a splendid opening for the best work of 

 competent architects and landscape gar- 

 deners. The plans prepared for the utiliza- 

 tion of this area, including a fine memorial 

 bridge over the tracks of the Pennsylvania 

 Railroad, seem to be well designed and 

 judicious. It will fall to the Sproul ad- 

 ministration to see that these are carried 

 out without any of that graft and scandal 

 which made the construction of the new 

 Capitol so painful a matter to honest 

 persons. 



The location of Harrisburg is such that 

 It ought to be made one of the most beauti- 

 ful of the smaller cities of the country, 

 especially when back of It stands a Com- 

 monwealth read.v to spend millions for im- 

 provements. The frontage on the Susque- 

 hanna, of which such excellent advantage 

 has been taken in the parking of the river 

 bank, suggests the extension of that work. 

 Back of the city lie hills affording glorious 

 views and available for residential sections 

 of the best type. The lordly Susquehanna, 

 so broad and so picturesque, with Its 

 islands and vistas of mountains. Is an asset 

 of Incomparable value. Ilappily for the 

 good of the community. It has had munici- 

 pal administrators who have realized all 



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these possibilities, and who have been glad 

 to co-operate with the State authorities In 

 bringing City anil State improvements in- 

 to entire harmony. A continuation of such 

 co-operation, as applied to the treatment 

 of the Capitol Park extension, ought to 

 produce the happiest results. It is not too 

 much to hope that as Harrisburg grows in 

 beauty It will exercise a refining and up- 

 lifting influence upon the Solons who 

 gather there for biennial tinkering of the 

 State laws. Amid such attractive sur- 

 roundings they may in time attain to wis- 

 dom and political Independence. Let us at 

 least believe In such a possibility. In the 

 meantime, the good people of Pennsylvania 

 will be glad to see the Capitol improve- 

 ments pressed as rapidly as possible and 

 brought to a finish without a suspicion ot 

 any scandal 



— Philadelphia Record. 



From the old boss-ridden state of 

 Pennsylvania it is a relief once in a 

 while to hear a good word, especially 

 if the same applies to our dearly be- 

 loved cult — horticulture. In thirty 

 years wo have not heard a better indi- 

 cation of the old progressive spirit of 

 the pioneers, from Bartram down, and 

 that there still exists among them that 

 spirit than is shown by the fine edi- 

 torial from the Philadelphia Record 

 reprinted herewith. The strong point 

 is its recognition of the mental effect 

 of good horticulture on the minds of 

 the average man, no matter what cave 

 he comes from to the state capital. 

 We commend this to the attention of 

 every state in the union. It is easier 

 to start a fire for the young ones than 

 for the old ones to blaze out of their 

 ashes! 



Pennsylvania is old — the Keystone 

 state— and like New England, long 

 held sway in horticulture, but from 

 the state, since policies got too one- 

 sided, horticulture has been little 

 thought of by the powers that be. 

 Xow we are glad to see a rift In the 

 blackness by this fine recognition of 

 what horticulture means in human 

 culture and happiness. May the 

 Phoenix rise from its ashes and may 

 Pennsylvania once more become a 

 leader in progress and refinement. 

 O. C. Watson. 



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