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Earnest v. Delaware, L. & W.R. Co.

Supreme Court of New York, Appellate Division

March 6, 1912

EURETTA EARNEST, Appellant,
v.
THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent.

Page 331

APPEAL by the plaintiff, Euretta Earnest, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 10th day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Steuben Trial Term.

COUNSEL

Monroe Wheeler, for the appellant.

Halsey Sayles, for the respondent.

SPRING, J.:

On the 2d day of November, 1908, the plaintiff delivered to the defendant, a common carrier, at its station in Bath, N.Y. , 240

Page 332

barrels of apples, consigned to the order of the First National Bank of Wayland, N.Y. , and destined for Chicago, Ill. The contract or bill of lading made by the defendant was delivered to the plaintiff and the same was attached by the latter to a sight draft upon Train, Letterman & Ford, of Chicago, Ill., for $660, payable to the order of the said First National Bank of Wayland, N.Y. ; and this draft was, with the bill of lading, sent through the bank for collection. An oral contract for the purchase of said apples had been made prior to their delivery to the defendant by an agent of Train, Letterman & Ford, whereby he agreed on behalf of said company to purchase said apples at $2.75 per barrel. No payment or written memorandum was made of such purchase.

The bill of lading provided: 'Inspection of property covered by this bill of lading will not be permitted unless provided by law, or unless permission is indorsed on this original bill of lading or given in writing by the shipper. * * * The carrier or party in possession of any of the property herein described shall be liable for any loss thereof, or damage thereto except as hereinafter provided.'

The contract further provided that the defendant should not be liable for loss, damage or injury not occurring on its own road, 'except as such liability is or may be imposed by law.'

Before the apples were shipped a few barrels of them were inspected by the agent of the Chicago firm. They arrived in Chicago on the sixth of November, and the yard agent of the railroad company erroneously entered the shipment as if there were no restrictions as to inspection in the bill of lading. The firm of Train, Letterman & Ford was notified by the defendant of the arrival of the apples in compliance with the direction contained in the bill of lading. It sent two employees to the freight yard of the defendant and the yardmaster unsealed the car, and these employees, with his permission, inspected about sixteen barrels of these apples, and thereafter resealed the car. The Chicago company refused to receive the apples and the plaintiff commenced this action of trover against the defendant. There is no proof that the apples were damaged, or that there was any loss or injury to the plaintiff

Page 333

by reason of the inspection made by Train, Letterman & Ford in violation of the agreement set forth in the bill of lading.

The plaintiff founds her right to recover upon a clause in an act of Congress regulating commerce between the States, and which is designated as the Carmack amendment to the Hepburn Act, being an amendment to the Interstate Commerce Act (approved February 4, 1887, in effect sixty days thereafter), and which Hepburn Act as thus amended is chapter 3591 of the first session of the fifty-ninth Congress, and became a law sixty days after June 29, 1906, the date of its approval. Section 20 of the original act was amended by section 7 of the amendatory enactment, and, among the provisions added by the amendment, is the following: 'That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation ...


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