American Ry. Express Co. v. Shideler

Decision Date05 March 1929
Docket NumberNo. 13268.,13268.
Citation88 Ind.App. 645,165 N.E. 336
PartiesAMERICAN RY. EXPRESS CO. v. SHIDELER.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Marion County; Byron K. Elliott, Judge.

Action by Edwin F. Shideler, doing business as E. F. Shideler & Co., against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Reversed.

Baker & Daniels and Wm. W. Seagle, all of Indianapolis, for appellant.

Thomas H. Fittz, of Indianapolis, for appellee.

LOCKYEAR, J.

This was an action by the appellee to recover from the appellant damages allegedly sustained by the appellee through a decline in the market price of a carload of tomatoes shipped from San Benito, Tex., to Houston, Tex., in the month of May, 1921, consigned to the shipper and diverted in transit to the appellee at Indianapolis, Ind.; it being the contention of the appellee that such car of tomatoes was delayed in transit through the fault of the appellant, and that such delay resulted in the alleged loss through decline in market price.

The issues were formed on the amended complaint of the appellee and an answer in two paragraphs by the appellant, the first paragraph of which answer was in geneal denial of the amended complaint, and by the second paragraph of which answer appellant pleaded that, by the terms of the contract of shipment covering this carload of tomatoes, the time within which appellee might bring this action expired before this action was begun, and a reply by appellee in general denial of the second paragraph of answer to the amended complaint. The issues thus formed were submitted to the court for trial, without the intervention of a jury. The court found for the appellee and against the appellant, and adjudged the appellee have judgment against appellant in the sum of $500, together with the costs of the action.

The only error assigned by the appellant is that the court erred in overruling the motion of appellant for a new trial on the following grounds: (1) The decision of the court is not sustained by sufficient evidence. (2) The decision of the court is contrary to law. (3) Error in the assessment of the amount of recovery, the amount of recovery being too large.

[1] It was stipulated by the parties hereto that a letter dated October 28, 1921, addressed to the appellee and signed F. A. Baker, Claim Agent,” written on behalf of the appellant, was received by the appellee in the due course of the mail following the said date of October 28, 1921 and was received prior to October 30, 1921, and it is undisputed that said letter contained this statement, We respectfully decline the claim,” and it is further stipulated that the claim declined is the claim upon which this action is based. The American Railway Express Company's (Incorporated) receipt, providing among other things that suits for loss, damages, or delay shall be institutedonly within two years and one day after the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof.

This action was not begun until January 7, 1924, which was more than two years and one day after the claim had been disallowed by the appellant. Upon receipt by the appellee of the appellant's written notice of declination of the appellee's claim, appellee refused to take “No” for an answer, and continued for a year or more to write to the appellant requesting payment and tried to show appellant that the claim was a meritorious one. Letters passed both ways between the parties, but at no time did the appellant agree to pay the claim, or recede from the statement made in the letter of October 28, 1921.

The appellee claims that the word “disallow” is not equivalent to “decline,” as used by the appellant in the letter of October 28, 1921; also that, by answering appellee's letters, appellee was lulled to sleep, and that the appellant is estopped to assert any right of contractual limitation. The act of Congress of the United States known as the Transportation Act of 1920, as amended, is as follows:

Section 438 (eleventh paragraph of section 20, further amended-third proviso-limitation on the time as to giving notice of and filing claims and instituting suits). “The third proviso of the eleventh paragraph of section 20 of the Interstate Commerce Act (not counting the proviso added by section 437 of this act) is hereby amended to...

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3 cases
  • BARBER v. SOUTHERN PAC. CO.
    • United States
    • New Mexico Supreme Court
    • October 14, 1947
    ...ends. Did limitations start running with the letter of January 31, 1944, or the letter of June 5, 1944? In American Railway Express Co. v Shideler, 88 Ind.App. 645, 165 N.E. 336, claim was made for loss occasioned by delay in the transportation of a carload of tomatoes. The bill of lading c......
  • American Railway Express Company v. Shideler
    • United States
    • Indiana Appellate Court
    • March 5, 1929
  • McDonald's Chevrolet, Inc. v. Johnson
    • United States
    • Indiana Appellate Court
    • May 16, 1978

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