American Oak L. Co. v. C., C., C. & St. L.R. Co.

Decision Date16 November 1926
Citation216 Ky. 611
PartiesAmerican Oak Leather Company v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company.
CourtUnited 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.

OPINION OF THE COURT BY JUDGE SAMPSON.

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 "that on August 4, 1917, 75 barrels of cod liver oil were shipped by George J. Tarr Company from Gloucester, Massachusetts, to Louisville, Kentucky, consigned to American Oak Leather Company. Said shipment was delivered to the Boston & Gloucester Steamship Company, which company issued its bill of lading therefor, and the said bill of lading is filed with and made a part of the petition marked `Exhibit A.' The defendant says that the said 75 barrels of cod liver oil were delivered by the Boston & Gloucester Steamship Company to the Boston & Albany Railroad Company and in turn delivered by the latter company to the defendant, and the defendant transported the shipment to Louisville, Kentucky, and delivered the same to the plaintiff on September 12, 1917."

As bar to appellant's right to recover for the loss of part of the shipment, appellee railroad averred:

"That the shipment of 75 barrels of cod liver oil mentioned in the petition was an interstate shipment from Boston, Massachusetts, to Louisville, Kentucky, and was governed by the provisions of the federal act to regulate commerce.

"In section 3, paragraph 3, of the bill of lading covering the said shipment, which bill of lading is attached to and made a part of the petition marked `Exhibit A,' it is provided as follows:

"`Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, as conditions precedent to recovery claims must be made in writing to the originating or delivering carrier within six months after delivery of the property . . . or, in case of failure to make delivery, then within six months . . . after a reasonable time for delivery has elapsed; and suit for loss, damage on delivery shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.'

"The defendant says that, although the said shipment of cod liver oil was delivered to the defendant in Louisville, Kentucky, on September 12, 1917, suit was not filed on the claim by the plaintiff until May 14, 1920, which date was more than two years and one day after the delivery of the said shipment to the plaintiff at Louisville, Kentucky."

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 "to be unreasonable, unjustly discriminatory, unduly prejudicial, and in violation of subsection 6 of section 1 of the Interstate Commerce Act, requiring just and reasonable regulations and practices affecting classifications, rates and tariffs, and the issuance, form and substance of tickets, receipts and bills of lading. That carriers alter and modify the terms of said bills of lading as to the period of limitation within which suits could be brought thereunder so as to require said period of limitation to run or begin running from...

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2 cases
  • Grieb v. National Bank of Kentucky's Receiver
    • United States
    • Kentucky Court of Appeals
    • 5 Diciembre 1933
    ... ... 280; ... Greene v. Frankfort Distillery Co., 209 Ky. 427, 273 ... S.W. 28; Shanks v. Board of Education, 221 Ky. 471, ... 298 S.W. 1111; American O. Co. v. C., C., C. & St. L. Ry ... Co., 216 Ky. 611, 288 S.W. 347; Ferlage v. Supreme ... Tribe of Ben Hur, 153 Ky. 465, 156 S.W. 139; L. & N ... ...
  • Utz v. Wallace's Adm'x
    • United States
    • Kentucky Court of Appeals
    • 19 Mayo 1933
    ... ... retrospective, unless expressly so stated or required by ... necessary implication. Com. v. Paynter, 222 Ky. 766, ... 2 S.W.2d 664, American Oak Leather Co. v. Cleveland, ... etc., R. R. Co., 216 Ky. 611, 288 S.W. 347. There is ... nothing in the act showing that it was intended to ... ...

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