Skyland Hosiery Co. v. American Ry. Express Co.

• Decision Date: 05 December 1923
• Docket Number: 509.
• Citation: 120 S.E. 228,186 N.C. 556
• Parties: SKYLAND HOSIERY CO. v. AMERICAN RY. EXPRESS CO.
• Court: North Carolina Supreme Court

120 S.E. 228

186 N.C. 556

SKYLAND HOSIERY CO. v. AMERICAN RY. EXPRESS CO.

No. 509.

Supreme Court of North Carolina

December 5, 1923

Appeal from Superior Court, Henderson County; McElroy, Judge.

Action by the Skyland Hosiery Company against the American Railway Express Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

A carrier may be contractual provisions limit the time within which suits shall be brought on claims against it.

Where a shipper, after the accrual of a claim against a carrier and a request by the carrier for time within which to investigate waited more than 14 months after the last negotiations before bringing suit, held, that the request for time to investigate by the carrier did not constitute a waiver of a provision in its contract that suit must be brought within twelve months and that the shipper's claim was barred by his laches.

Arledge & Arledge, of Hendersonville, for appellant.

Michael Schenck, of Hendersonville, for appellee.

ADAMS J.

Upon the former appeal the court awarded a new trial for error committed in placing the burden of proof on the defendant. For a statement of facts, reference is made to the case as reported in 184 N.C. 478, 114 S.E. 823. The defendant was afterwards permitted to amend its answer by alleging that under the contract of shipment, the defendant was not to be liable for loss unless a written claim therefor was presented by the plaintiff within 90 days and unless suit for recovery was commenced within one year after such loss, and that the plaintiff had not complied with either of these provisions. The plaintiff replied, admitting noncompliance and alleging the defendant's waiver. At the close of the evidence his honor dismissed the action as in case of nonsuit, and the plaintiff appealed.

The first exception was abandoned. The second was taken to the exclusion of an answer to the question whether a witness for the plaintiff knew the custom of the defendant with regard to its prompt settlement of claims. The record does not show whether the witness knew there was such a custom or, if there was, what his answer to the question would have been. The exception therefore cannot be sustained. In re Will of Edens, 182 N.C. 398, 109 S.E. 269; Snyder v Asheboro, 182 N.C. 708, 110 S.E. 84.

The shipment was made on September 19, 1919, and on the next day the loss was discovered. The summons was issued on February 8, 1921; and the principal controversy between the parties turns on the defendant's contention that under the terms of the contract the plaintiff was limited to 12 months from the loss within which to bring its suit. The clause on which the defendant chiefly relies is this:

"Nor shall the company be liable in any suit to recover for the loss, damage or detention of this shipment unless the same be commenced within one year thereafter."

Contractual provisions limiting the time within which suit shall be brought have been upheld in receipts or bills of lading in both interstate and intrastate commerce and in other contracts. Rogers v. R. R., 186 N.C. 86, 118 S.E. 885; Winstead v. R. R., 118 S.E. 887; Dixon v. Davis, 184 N.C. 207, 114 S.E. 8; Thigpen v. R. R., 184 N.C. 33, 113 S.E. 562; Beard v. Sovereign Lodge, 184 N. C., 154, 113 S.E. 661. In the case last cited it is said that a provision of this character is not a statute of limitation but a contract which imposes a restriction upon the right of action by definitely fixing a period within which the plaintiff's rights must be asserted.

The plaintiff does not seriously contest this principle, but insists that the condition was waived by the defendant's request for time to make an investigation of the loss. C. P. Rogers, the plaintiff's general manager, testified as to the following conversation between himself and the defendant's superintendent:

"I told him that I couldn't see but what the express company was responsible for the loss, and he told me that he would make a thorough investigation of the shortage, and I agreed to give him all the help we possibly could out there to make the investigation, and he told me that when the investigation had

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