Noblesville Milling Co. v. Baltimore & Ohio Railroad

Court of Appeals of Maryland

Noblesville Milling Co. v. Baltimore & Ohio Railroad

121 A. 576, 142 Md. 673, 1923 Md. LEXIS 60

DecidedFebruary 13, 1923

StatusPublished

This text of 121 A. 576 (Noblesville Milling Co. v. Baltimore & Ohio Railroad) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Noblesville Milling Co. v. Baltimore & Ohio Railroad, 121 A. 576, 142 Md. 673, 1923 Md. LEXIS 60 (Md. 1923).

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Opinion

*674 Pattison, J.,

delivered the opinion of the Court.

In this ease the appellant, the No-blesville Milling Company, on the 29th day of September, 1917, delivered to the appellee, the Baltimore and Ohio Eailroad Company at Noblesville, in the State of Indiana, five hundred bags of Kismet' flour, consigned to the appellant at Baltimore, Maryland.

The flour was transported to Baltimore by the appellee, but after its arrival in Baltimore it was destroyed by fire while in custody of the appellee at its Locust Point terminal.

The appellant on the 21st day of December, 1922, brought suit against the appellee to- recover for the loss of the flour. The declaration contained six of the common counts and one sp.ecial.count. To the special count the defendant pleaded: ,First “That the alleged cause.of action did not accrue within three years before the institution of this suit.” Second: “That the loss or damage complained of in the plaintiff’s declaration occurred prior to the dates on which the shipment in question should.have been delivered by the defendant, and that this suit was not instituted within two years and one day after a reasonable time for delivery had elapsed, as is required by the terms of the published classifications and tariffs .o-f .the common carriers who transported said shipment and under which classifications and tariffs said, shipment moved and that said classifications and tariffs were legally published and filed with the Interstate Commerce Commission, and were effective at the time the said shipment was made.”

A demurrer filed to these pleas was sustained as to the first, but overruled- as to the second, and upon the plaintiff declining to reply to the second plea, a judgment was entered against it for defendant’s costs. It was from that judgment the appeal was taken.

The only fact that distinguishes this case from the case of the Acme-Evans Company v. Baltimore and Ohio Railroad Company, argued with it at the October Term of this Court, *675 (ante, p. 658) is that in the latter ease the bill of lading did not contain the limitation clause in the tariffs filed with the commission; while in this case, such limitation clause was inserted in the bill of lading issued to the appellant by the appellee.

This fact, however, does not, we think, materially affect or change the liability of the parties, and as the questions presented in this case are the same as those presented in the case above referred to, the views we expressed in that case are controlling in this, and, therefore, the judgment appealed from will be affirmed.

Judgment affirmed, with costs.

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*674 Pattison, J.,

delivered the opinion of the Court.

In this ease the appellant, the No-blesville Milling Company, on the 29th day of September, 1917, delivered to the appellee, the Baltimore and Ohio Eailroad Company at Noblesville, in the State of Indiana, five hundred bags of Kismet' flour, consigned to the appellant at Baltimore, Maryland.

The flour was transported to Baltimore by the appellee, but after its arrival in Baltimore it was destroyed by fire while in custody of the appellee at its Locust Point terminal.

The appellant on the 21st day of December, 1922, brought suit against the appellee to- recover for the loss of the flour. The declaration contained six of the common counts and one sp.ecial.count. To the special count the defendant pleaded: ,First “That the alleged cause.of action did not accrue within three years before the institution of this suit.” Second: “That the loss or damage complained of in the plaintiff’s declaration occurred prior to the dates on which the shipment in question should.have been delivered by the defendant, and that this suit was not instituted within two years and one day after a reasonable time for delivery had elapsed, as is required by the terms of the published classifications and tariffs .o-f .the common carriers who transported said shipment and under which classifications and tariffs said, shipment moved and that said classifications and tariffs were legally published and filed with the Interstate Commerce Commission, and were effective at the time the said shipment was made.”

A demurrer filed to these pleas was sustained as to the first, but overruled- as to the second, and upon the plaintiff declining to reply to the second plea, a judgment was entered against it for defendant’s costs. It was from that judgment the appeal was taken.

The only fact that distinguishes this case from the case of the Acme-Evans Company v. Baltimore and Ohio Railroad Company, argued with it at the October Term of this Court, *675 (ante, p. 658) is that in the latter ease the bill of lading did not contain the limitation clause in the tariffs filed with the commission; while in this case, such limitation clause was inserted in the bill of lading issued to the appellant by the appellee.

This fact, however, does not, we think, materially affect or change the liability of the parties, and as the questions presented in this case are the same as those presented in the case above referred to, the views we expressed in that case are controlling in this, and, therefore, the judgment appealed from will be affirmed.

Judgment affirmed, with costs.

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121 A. 576, 142 Md. 673, 1923 Md. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noblesville-milling-co-v-baltimore-ohio-railroad-md-1923.