Ingram v. Weir
| Decision Date | 04 January 1909 |
| Docket Number | 88. |
| Parties | INGRAM v. WEIR. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
William T. Connor and John R. K. Scott, for plaintiff.
John L Evans and Thomas De Witt Cuyler, for defendant.
On November 20, 1905, the plaintiff's wife, acting on his behalf, sent a box and a trunk by a hired wagon to the office of the Adams Express Company on Washington street in the city of Chicago. She followed the packages immediately to the office, but there is no evidence of what took place on that occasion. For some undisclosed reason the goods remained in the office of the company until November 27th, when she called again, inquired why they had not been forwarded, was told that the company was waiting for instructions apparently gave such instructions, and then asked for and was given the receipt, or bill of lading, that was offered in evidence upon the trial. The packages were delivered in Philadelphia a day or two afterwards in such condition that the defendant's negligence could hardly be disputed-- indeed, it was not denied at the trial-- and as a somewhat belated result the present suit was brought in August, 1907 to recover damages for the loss sustained. By agreement of the parties a verdict for $616 was taken, subject to the reserved questions whether the plaintiff is entitled to recover at all, or, if entitled to recover some amount, whether the verdict should exceed $50, with interest. Both these questions depend upon provisions in the bill of lading; but, in the view I take of the matter, one question only need be considered.
As I have just stated, the present action was brought in August, 1907, nearly two years after the loss, and this delay is in violation of the following clause in the bill of lading:
'Nor shall the company be liable in any suit to recover for the loss, damage, or detention of said property unless the same shall be commenced within one year after such loss, damage, or detention shall have occurred, and not afterwards.'
If this provision is binding, the suit is barred. The plaintiff argues that such effect should not be given to the clause for two reasons: First, he avers that the goods were received for carriage on November 20th, without the issue of any receipt or bill of lading, and denies the defendant's right to issue afterwards a bill of lading without a new consideration, and thus to limit the common-law liability that had already attached. The trouble about this position is that there is no evidence to support it. The trunk and box were hauled to the defendant's office, not by one of its own wagons, but by a local teamster in the city of Chicago, who was employed by the plaintiff for that purpose. Of course, packages thus deposited in the office of an express company would not be shipped until definite instructions were given, and, if any instructions were given on November 20th concerning these packages, or if any contract was then entered into, the plaintiff failed to offer the necessary proof.
Mrs. Ingram testified that she was at the defendant's office and saw the goods within an hour after she had given them to the teamster; but there is not a word of testimony about what further took place, if anything, on that day. As the plaintiff was bound to make out his case affirmatively, I am not at liberty to conjecture that a contract of carriage was then entered into, and to conjecture, further, what its terms may have been. But it does appear, and the fact is now controlling, that on November 27th, a written contract was entered into of which the terms are before the court. This contract, or receipt, or bill of lading-- whatever name may be used to describe it-- was offered in evidence by the plaintiff, and he did not prove or offer to prove that his agent had not read it, or did not know its contents, or did not understand it, or had not agreed to its terms, or had been induced to sign it by any fraud or under any misapprehension. Upon the facts stated, the acceptance of the receipt was equivalent to an express consent to its terms, and the plaintiff was as much bound thereby as if his agent had signed the paper. This is distinctly declared upon the face of the bill of lading itself, whereby the company agrees to carry the articles 'upon the following terms and conditions, to which the shipper agrees, and as evidence thereof accepts this bill of lading. ' Indeed, his counsel concedes in the brief that was submitted upon this argument:
'That the acceptance of a shipping receipt, or like paper, at the time of, or...
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Hamilton v. The Chicago & Alton Railroad Company
... ... 261.]" To the same effect, ... see also the case of The Westminster, 127 F. 680, and [177 ... Mo.App. 153] The Hubert, 107 F. 727; Ingram v. Weir, ... 166 F. 328; Ginn v. Transit Co., 85 F. 985 ... This ... being an interstate shipment, and therefore governed ... ...
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... ... bringing of an action within less than the statutory period, ... were superseded by the Federal law. Ingram v. Weir, ... 166 F. 328; R. R. Co. v. Soper, 50 F. 879; ... Express Co. v. Caldwell, 22 L.Ed. (U.S.) 556; 6 Ross ... notes to U. S. Reports, 420; ... ...
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