Aetna Insurance Company v. Cooper Wells & Company

• Decision Date: 13 June 1956
• Docket Number: No. 12580.,12580.
• Parties: AETNA INSURANCE COMPANY, a Connecticut corporation, Assignee and Subrogee of Holeproof Hosiery Company, a Wisconsin corporation, and Holeproof Hosiery Company, a Wisconsin corporation, Appellants, v. COOPER WELLS & COMPANY, a Michigan corporation, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

234 F.2d 342 (1956)

AETNA INSURANCE COMPANY, a Connecticut corporation, Assignee and Subrogee of Holeproof Hosiery Company, a Wisconsin corporation, and Holeproof Hosiery Company, a Wisconsin corporation, Appellants, v. COOPER WELLS & COMPANY, a Michigan corporation, Appellee.

No. 12580.

United States Court of Appeals Sixth Circuit.

June 13, 1956.

Robert M. Waer, Grand Rapids, Mich., Reginald S. Johnson, Detroit, Mich., Harrington, Waer, Cary & Servaas, Grand Rapids, Mich., on brief, for appellants.

Laurence D. Smith, Grand Rapids, Mich., Paul D. Compton (of Rein, Mound & Colton), New York City, Schmidt, Smith & Howlett, Grand Rapids, Mich., on brief, for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This appeal arises out of a summary judgment rendered by the District Court against appellants, plaintiffs below.¹ The complaint set up an action on contract arising out of an alleged agreement for the transportation of certain merchandise, the property of plaintiff Holeproof Hosiery Company, hereinafter called "Holeproof," in defendant's motor truck from Cullman, Alabama, to Milwaukee, Wisconsin. It was alleged in substance that it was agreed that defendant was to be paid at the rate or rates chargeable for similar services by common carriers, that regular bills of lading were to be issued to cover such shipments, and that defendant was "to have the rights and be subject to the liabilities and obligations of a common carrier of goods for hire." It was further alleged that defendant, disregarding its duty to safely carry and deliver the goods, failed to make delivery and that demands for payment had been refused. After motion to strike had been made by defendant and denied by the court, defendant filed an answer in which it admitted the transportation of Holeproof's goods in its truck, but alleged that the loss of the goods was due to highjacking of the truck near Chicago by four men who, at gun point, forced defendant's employees to surrender the truck and to enter the highjackers' automobile. Defendant's tractor and trailer were later recovered by the police, but the cargo was never recovered. In its answer defendant asserted that it was not negligent in connection with the highjacking incident; that, if any negligence was shown, the proximate cause of the injury was the highjacking of the truck and not defendant's negligence. Defendant also averred that the arrangement for transportation was oral and was merged in the written bill of lading subsequently issued in the transaction and that defendant therefore, under the provisions of the bill of lading, was liable only as a contract carrier answerable for negligence. A motion for summary judgment filed by defendant was granted.

Plaintiffs contend that the judgment constituted reversible error for three reasons: (1) when a contract carrier accepts goods for shipment under an agreement by which the carrier is to assume the liabilities of a common carrier, to charge common carrier rates, to issue uniform straight bills of lading used by common carriers and to take out insurance to cover the shipment, the carrier's entire liability is not to be determined solely by the bill of lading, and oral evidence as to the transaction should be admitted; (2) the use by a contract carrier of a bill of lading prepared and approved for the use of common carriers indicates an intention that the contract carrier's liability be increased to that of a common carrier; (3) under the facts of this record evidence of negligence in the transportation of valuable goods was shown, constituting a proximate cause of the loss.

The District Court entered summary judgment for defendant. It held that the bill of lading was controlling, that any prior oral agreement between Holeproof and defendant was merged therein, and that the bill of lading under its express terms created a liability against the carrier only "as at common law for any loss or damage thereto. * * *" As found by the court:

"It is agreed by all counsel, and it has not been denied in any of the pleadings, the briefs, the depositions or the stipulations, that the defendant here was at most a contract carrier."

While the record, as is usual in summary judgment cases, is meager, we think the District Court on these points ruled correctly. The rates that were to be charged were ordinary trucking rates. While the bill of lading issued in the transaction may be used by common carriers, its terms are applicable to carriers and "parties in possession of property." The last quoted term is broad and shows that the bill of lading is designed for use, not only by common carriers, but by contract carriers and private carriers. The use of this bill of lading constitutes no evidence of an intention that the contract carrier's liability should be that of an insurer.

Plaintiffs' third point, although not raised in its pleadings, has more merit. The answer pleaded the incident of the highjacking in full as constituting conclusive evidence that defendant was not liable. No reply was filed by plaintiffs. Whatever is shown on this point appears in the testimony that defendant's ...