E. L. Welch Co. v. Chicago, Milwaukee & St. Paul Railway Co.

175 N.W. 100, 144 Minn. 471, 1919 Minn. LEXIS 770

Opinion

Pee Cubiam.

.On February 27, 1915, the Farmers’ Co-operative Society shipped a car of oats from Alpha, Minnesota, over the defendant’s line of railroad, under the usual uniform bill of lading, consigned to plaintiff at Minneapolis. The bill of lading contained the usual four months’ limitation provision for making claim for loss in ease the carrier failed to deliver the shipment. Plaintiff was a commission merchant at Minneapolis, received the bill of lading and paid the shipper for the oats in the usual course of business. The defendant failed to deliver the shipment. No claim for los|s was made until May 17, 1916.

This action was ‘brought on the theory of conversion, to recover the value of the car of oats. Defendant pleaded the limitation clause as a .bar to plaintiff’s right of recovery. The reply set up a waiver of the limitation clause. There was testimony in support of a waiver. At the close of the testimony the trial court directed a verdict for defendant, upon the theory that the defendant could not waive the limitation claujse as it would be contrary to the statutes of the state. A majority of the court are of the opinion that the trial court was in error. The rule is no longer an open question in this state. The carrier may waive the provisions of such limitation clause. Robinson v. Great Northern Ry. Co. 123 Minn. 495, 144 N. W. 220; Naumen v. Great Northern Ry. Co. 131 Minn. 217, 154 N. W. 1076; Shama v. Chicago, M. & St. P. Ry. Co. 128 Minn. 522, 151 N. W. 406; Ferris v. M. & St. L. R. Co. 143 Minn. 90, 173 N. W. 178.

The order denying plaintiff’s motion for a new trial is reversed and a new trial granted.