Public Service Elec. & Gas Co. v. Reading Co.
Decision Date | 24 December 1951 |
Docket Number | No. L--5220,L--5220 |
Citation | 85 A.2d 548,17 N.J.Super. 148 |
Parties | PUBLIC SERVICE ELECTRIC & GAS CO. v. READING CO. |
Court | New Jersey Superior Court |
Carl T, Freggens, Newark (Luke A. Kiernan, Jr., Newark, appearing), for plaintiff.
Lum, Fairlie & Foster, Newark (Raymond W. Troy, Newark, appearing), for defendant.
By agreement of counsel this cause was tried without a jury. The plaintiff seeks recovery for damages to three current limiting reactors manufactured by General Electric Company and admittedly damaged in transit between Pittsfield, Massachusetts, the point of origin, to Port Reading, New Jersey, the terminal point. The three reactors passed over the lines of other carriers. Two of the reactors were delivered on June 6, 1948 to the plaintiff's siding at Port Reading. On June 9, the third reactor was delivered at the same place. Ultimately, the three reactors were returned to the General Electric Company at Pittsfield, Massachusetts, where, excepting for salvage value, they were scrapped and new reactors manufactured in their stead. In the damaged condition, the reactors were useless to the plaintiff. The original cost of the three reactors was $20,982. The cost of the replacements, after allowing for the salvage value, was $20,858.62.
The reactors were shipped under uniform straight bills of lading as required by 49 U.S.C.A., sec. 20(11), on the back of which, as sec. 2(b), appears the following: The reverse side of the bill of lading is entitled 'Contract terms and conditions' and the rights and liabilities as between the plaintiff and defendant arise from that contract. The issue submitted to the court was whether or not the plaintiff was entitled to maintain this suit in light of the undisputed fact that written claims for the losses were not filed until December 19, 1949, a period of approximately 18 months after the delivery of the three reactors.
Prior to the trial, the defendant moved for summary judgment for failure or the plaintiff to file a claim or claims for damage in writing within nine months. That motion was denied. Public Service Electric & Gas Co. v. Reading Company, 13 N.J.Super. 383, 80 A.2d 473 (Law Div. 1951). At the trial it appeared without question that upon arrival of the first two reactors at Port Reading, representatives of both plaintiff and defendant examined the damaged reactors. Thereafter, when the third reactor arrived, there was an examination by representatives of both of the parties on June 28, 1948. At the trial of the case, Henry W. Codding, an engineer in the electric department of the plaintiff testified as follows:
There is, in the entire record, no testimony which, by any reasonable construction, can be construed as a claim.
In Anchor Line, Limited v. Jackson, 9 F.2d 543, 545, (C.C.A.2, 1925) that court, speaking through Judge Hand, said after reviewing a number of federal decisions: (Italics this court's.)
The plaintiff relies heavily upon the case of Hopper Paper Co. v. Baltimore & O.R. Co., 178 F.2d 179, 181 (C.C.A. 7, 1949), a case in which the provision of 49 U.S.C.A., sec. 20(11) was under consideration. The court said: ...
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