American Oak L. Co. v. C., C., C. & St. L.R. Co.
Decision Date | 16 November 1926 |
Citation | 216 Ky. 611 |
Parties | American Oak Leather Company v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. |
Court | United States State Supreme Court — District of Kentucky |
6. Estoppel — Allegation that Railroad was Estopped to Rely on Limitations by Inducing Shipper to Delay Action Held, as Against General Demurrer, Not Supported by Letters of Date After Limitation had Run. — Amended reply, alleging railroad had estopped itself to rely on limitation in bill of lading by reason of having induced shipper to delay action, held, as against demurrer, not supported by letters attached, bearing date after limitation had run.
Appeal from Jefferson Circuit Court
THOMAS C. MAPOTHER and ALLEN P. DODD for appellant.
HUMPHREY, CRAWFORD & MIDDLETON and LOUIS SEELBACH, JR., for appellee.
Affirming.
This appeal is from a judgment entered in the Jefferson circuit court dismissing the petition, after a demurrer had been sustained to the reply as amended, and the plaintiff, now appellant, declined to further plead. We must, therefore, determine whether the reply was subject to demurrer.
Appellant leather company sued the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover $655.11 for loss and damage to a shipment of 75 barrels of cod liver oil consigned at Boston to appellant in Louisville, on the 4th of August, 1917, and on the 12th of that month received in Louisville, in part, two barrels having been totally lost and thirty-four others damaged so that 723 gallons of the oil was missing. Its reasonable value at the time was alleged to be eighty-three cents (83c) per gallon. In addition to the foregoing facts appellant averred in its petition "that after it had ascertained its loss as aforesaid, and on the proper forms and on the 22nd day of September, 1917, it filed its claim duly verified with the defendant company, together with the original bill of lading, paid freight bill and copy of invoices showing its loss and damage as aforesaid, and that although the defendant company kept and retained all of its papers for a period beginning September 22, 1917, and ending April 19, 1920, yet the said defendant company wholly failed and refused to pay to the plaintiff its damages as aforesaid or any part thereof, but that the said sum of $624.99 remains wholly due and unpaid."
An item of $23.62 alleged to be an excessive freight charge is included in the $655.11 sought to be recovered.
The answer of the appellee, railroad company, admitted the shipment of the cod liver oil, averring
As bar to appellant's right to recover for the loss of part of the shipment, appellee railroad averred:
Replying, appellant, leather company, admitted that the shipment in question was one in interstate commerce and governed by the law regulating interstate shipments, and allegd that "under said federal Interstate Commerce Act the Interstate Commerce Commission is vested with power and authority to determine the reasonableness and unreasonableness, legality and illegality of rates, rules, regulations, contracts, classification and tariff provisions of interstate carriers engaged in and covering movements of interstate traffic."
Further replying, appellant averred that the Interstate Commerce Commission, in considering and construing the uniform bill of lading of carriers with respect to the time in which suits must be brought for loss and damage to shipments, held the limit of two years and one day ...
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