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Van Dyke v. Pennsylvania R. Co.

Superior Court of Delaware, New Castle County

January 28, 1952

VAN DYKE
v.
PENNSYLVANIA R. CO.

[46 Del. 530] Albert L. Simon, of Wilmington, for plaintiff.

William Poole (of Berl, Potter & Anderson of Wilmington), for defendant.

Page 347

TERRY, Judge.

This action was brought by the plaintiff, Cora L. VanDyke, against the defendant, The Pennsylvania Railroad Company, a Pennsylvania corporation, to recover the actual or full value of a trunk and contents allegedly lost after delivery to the defendant at Washington, D. C., for shipment and before delivery to plaintiff at its destination, Dover, Delaware.

The allegations of the complaint are:

1. On September 24, 1947, the plaintiff shipped from Washington, D. C., to Dover, Delaware, via The Pennsylvania Railroad[46 Del. 531] Company, a large trunk containing personal wearing apparel of the plaintiff. The shipment originated in Mexico and arrived at Washington, D. C., by way of connecting carriers, and was delivered by the agent of Empire Freight Company, Inc., to The Pennsylvania Railroad Freight Office at Washington, D. C. The above trunk, together with other items, were carried by the defendant railroad company from Washington, D. C., to Dover, Delaware, and the shipment arrived at the Freight Office of The Pennsylvania Railroad Company in Dover, Delaware, on October 2, 1947. On the same day, the Agent of The Pennsylvania Railroad Company notified the plaintiff that her shipment had arrived. On the afternoon of October 2, 1947, the plaintiff presented her bill of lading to the Freight Agent of The Pennsylvania Railroad Company at Dover, Delaware, and requested delivery of her shipment including the above mentioned trunk. The Agent refused to deliver the shipment to her until a sum of money was paid by her. She advised the Agent that the sum had been pre-paid, and the bill of lading was marked pre-paid. Notwithstanding the pre-payment of all charges by the plaintiff, the defendant illegally and wrongfully withheld delivery of the shipment, including the above trunk, from the plaintiff. Although the bill of lading was marked pre-paid, the plaintiff was required to communicate with Federal Storage Company of Washington, D. C., which was the Agent of the initial carrier, Empire Freight Company, Inc., of Los Angeles, California, and the Freight Agent of the defendant railroad company was finally convinced on October 14, 1947 that the charges had been in fact pre-paid. However, when delivery of the shipment was offered to the plaintiff by the defendant on October 14, 1947, it was found that the above mentioned trunk was missing and had been lost at Dover, Delaware, between October 2, 1947, when demand was made therefor by the plaintiff, and October 14, 1947, when the defendant finally conceded that it was wrong in improperly withholding the shipment from the plaintiff.

2. Although the bill of lading provides for a limitation of liability of the defendant of ten cents per pound, the plaintiff [46 Del. 532] says that the limitation of liability under said bill of lading terminated on October 2, 1947 when the plaintiff demanded delivery of the shipment. Had delivery of the shipment been made on October 2, 1947, when the plaintiff demanded it, the entire shipment, including the trunk, would have been in possession of the plaintiff on October 2, 1947. Because of the improper and illegal refusal of the defendant, through its Agent, to deliver the shipment to the plaintiff on October 2, 1947, the large trunk was lost by the defendant railroad company, for which the defendant is liable for the full value thereof.

3. Attached hereto is an itemized list of the contents and values of the articles contained in said trunk.

Wherefore, plaintiff demands judgment against the defendant in the sum of $665.00 plus court costs.

               Contents of Trunk
   Woolen coat                        $150.00
   Woolen suit                        100.00
   5 Prs. of shoes $10.00 per pair    50.00
   4 Silk dresses                     100.00
   Woolen underwear                   25.00
   1 Bathrobe                         25.00
   Misc.                              150.00
   Wardrobe trunk                     65.00
   Total                              $665.00
   

The answer embraces the following defenses:

First Defense

1. Answering paragraph 1 of the complaint, defendant admits that on or about

Page 348

Defendant admits that on or about October 2, 1947, a portion of the shipment consigned to plaintiff arrived at the freight office of defendant in Dover, Delaware, but denies that the trunk designated as item #16 on the bill of lading (Exhibit 'A') arrived at Dover at that or any other time.

Defendant admits that on or about October 2, 1947, its agent notified the plaintiff that a portion of her shipment had arrived at Dover and that on or about that date plaintiff presented her bill of lading to defendant's freight agent at Dover and requested delivery of her shipment. Defendant further avers that on October 2, 1947, plaintiff did not tender to defendant any sum of money to pay the C.O.D. charges then due.

Defendant admits that when plaintiff originally requested delivery of her shipment on or about October 2, 1947, freight charges were demanded along with the C.O.D. charges in accordance with the notation endorsed on the bill of lading. At the time plaintiff requested delivery of her shipment, defendant's agent informed plaintiff that the trunk was missing and that defendant would attempt to trace it.

Defendant admits that on or about October 2, 1947, plaintiff informed defendant's agent that the freight charges were not due and that the shipment was a prepaid one.

Subsequently, defendant's freight agent ascertained from Washington, D. C., the point of origin of the shipment, that the defendant company's freight charges were not due and that the [46 Del. 534] shipment was a pre-paid one, and immediately upon receiving this information on or about October 14, 1947, the defendant's freight agent notified plaintiff that she could obtain the shipment upon payment of the C.O.D. charges but that the trunk had not yet been located. On or about October 14, 1947, plaintiff called for the shipment of goods consigned to her and paid the C.O.D. charges in the amount of $385.45 and said shipment, except for the missing trunk was delivered to plaintiff. A copy of the receipted freight bill showing payment of the C.O.D. charges is attached hereto, made a part hereof and marked Exhibit 'C'.

2. Defendant admits that the bill of lading (Exhibit 'A') provides for a limitation of liability of defendant to ten cents per pound, in the following terms: 'Note--Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or declared value of the property. The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding ten cents per lb.'

Defendant denies that had delivery of the shipment been made on or about October 2, 1947 when plaintiff demanded it, the entire shipment, including the trunk would have been in possession of the plaintiff on or about October 2, 1947. Defendant denies that it was improper or illegal to refuse delivery of the shipment to the plaintiff on or about October 2, 1947, and further denies that for that or any other reason the defendant is liable for the full value of the trunk designated as item #16 on the bill of ...


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