Thomas Canning Co. v. Southern Pacific Co.

Wiest, C. J.

This case has been here before and *155 is reported in 219 Mich. 388 , where a full statement of the facts and issues will be found. The action is to recover damages to three cars of dry beans shipped to plaintiff from points in California and originating on defendant’s lines. The case has been retried in the circuit and the only new evidence was a showing that the beans were delivered to the carrier in good condition and, therefore, the damage to the beans in one car was occasioned by the negligence of defendant in shipping them in an oil-soaked car. The circuit judge followed our opinion, and directed a verdict for defendant. The case presents the same legal questions as when here before, supplemented by the claim that where loss happens through negligence of the carrier, limitation of time within which to bring suit, as determined in our former opinion, does not apply.

The re-argument of the questions is most ingenious but induces no thought of error in our former decision. Our attention is called to Taylor Co. v. Railway Co. (Ky.), reported in the advance sheets of 245 Southwestern Reporter at page 895, but for some reason not included in the bound volume, and we are asked to abandon our decision and accept the views expressed by the court of appeals of Kentucky.

Since our decision the pivotal questions involved have come before the court of appeals of Maryland in Acme-Evans Co. v. Railroad Co., 142 Md. 658 ( 121 Atl. 571 ), and our opinion is there quoted with approval, and the Kentucky opinion considered.

The loss through claimed negligence falls within the clause “suits for loss, damage or delay,” and the limitation mentioned in our former opinion applies thereto. Ellis v. Davis, U. S. Adv. Ops. 1922-23, p. 262 (43 Sup. Ct. 243).

Plaintiff urges us to excuse it from the limitation *156 of time in which suit should have been brought, because defendant had no agent within the State upon, whom process could be served, and during Federal-control suit by attachment was prohibited, and calls our attention to Peona, etc., Ins. Co. v. Hall, 12 Mich. 202 . In that case suit was brought within the contract period of limitation and process was issued but could not be served by reason of absence of an agent-required, by statute, to be appointed within the State and upon whom process could be served. Here defendant was not required to have such an agent. Plaintiff could have sued at any time in a jurisdiction where process would have reached defendant, and we cannot hold that mere inconvenience in place of planting suit tolls the time within which such suit should have been brought.

Our former opinion, written by Mr. Justice Fellows, is controlling upon every question presented and. the judgment is affirmed, with costs to defendant.

Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.