Mersfelder v. Atchison
| Decision Date | 27 August 1918 |
| Docket Number | No. 2181.,2181. |
| Citation | 24 N.M. 518,174 P. 989 |
| Court | New Mexico Supreme Court |
| Parties | MERSFELDERv.ATCHISON, T. & S. F. RY. CO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under section 4743, Code 1915, held, a carrier, could waive a time limitation on shipper's right to sue for damages, contained in the bill of lading.
Where it does not appear from the record that the trial court ruled on a question of pleading, this court will decline to consider it, when to do so would be to deprive one of the parties of his right to amend.
Appeal from District Court, Curry County; McClure, Judge.
Action by W. B. Mersfelder against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Reversed in part, and affirmed in part.
Under section 4743, Code 1915, held, a carrier could waive a time limitation on shipper's right to sue for damages, contained in the bill of lading.
H. L. Patton and C. A. Hatch, both of Clovis, for appellant.
W. C. Reid, C. M. Botts, and Geo. S. Downer, all of Albuquerque, for appellee.
Mersfelder sued the railroad company for damages on account of three several shipments of live stock-one an interstate shipment, the others intrastate shipments. The company denied liability, for the reason that suit had not been brought within six months; that limitation on Mersfelder's right to sue being a part of the contract of shipment. Mersfelder pleaded a waiver of the limitation by reason of the acts of the company in treating with him for settlement and thereby inducing him to believe that it would settle without suit. The case having been set for trial, it was called and a jury sworn to try it, and plaintiff proceeded to introduce his evidence, when he was met by an objection on the part of the company to the introduction of any evidence, and a motion for judgment on the pleadings for the defendant, and against the plaintiff, “upon the grounds that the pleadings were insufficient to sustain a different judgment, notwithstanding any evidence which might be produced, in that the facts alleged by way of new matter in plaintiff's second amended reply are insufficient in law to avoid defendant's defense by way of new matter and admitted by the plaintiff.” This objection was sustained, and judgment rendered for the defendant against plaintiff, from which plaintiff appeals.
[1] 1. It is admitted by plaintiff that as to his second cause of action, being an interstate shipment, the trial court was correct in its ruling; but he questions the ruling as it applies to the other two counts, they being intrastate shipments. It must be admitted that under the present state of the law the limitation upon the time in which a shipper can sue a carrier for damages, being a provision for the benefit of the carrier, can be waived by it, except with respect to interstate shipments; these being, of course, under the Interstate Commerce Act (), by which waivers are made unlawful. 10 C. J. 340; 4 R. C. L. p. 799, § 257. The defendant here relies upon our statute (section 4743, Comp. Laws 1915, as effectuating the same result with respect to intrastate shipments in New Mexico as does the federal law with respect to interstate shipments. Our statute reads as follows:
Act Feb. 11, 1882, c. 59, § 2.
The scope and exact effect of the federal law will be ascertained best from the construction placed upon it by the court intrusted with its...
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BARBER v. SOUTHERN PAC. CO.
...cents a pound. We begin a consideration of the question of limitation with the knowledge that this court in Mersfelder v. Atchison, T. & S. F. Ry. Co., 24 N.M. 518, 174 P. 989, 990, held that the defense of limitation of time in which a suit may be brought for damage to an interstate shipme......
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Harvey v. Bokum
...participate without objection, that they cannot on appeal raise the issue that they were not properly pleaded. Mersfelder v. Atchison, T. & S. F. Ry. Co., 24 N.M. 518, 174 P. 989; Nikolich v. Slovenska Nardona Podporna Jednota, 33 N.M. 64, 260 P. 849; and Koch v. Ziegler, 35 N.M. 91, 290 P.......