Aetna Insurance Co. v. Wells

This appeal arises out of a summary judgment rendered by the District Court against appellants, plaintiffs below. The complaint set up an action on contract arising out of an alleged agreement for the transportation of certain merchandise, the property of plaintiff Holeproof Hosiery Company, hereinafter called "Holeproof," in defendants motor truck from Cullman, Alabama, to Milwaukee, Wisconsin. It was alleged in substance that it was agreed that defendant was to be paid at the rate or rates chargeable for similar services by common carriers, that regular bills of lading were to be issued to cover such shipments, and that defendant was "to have the rights and be subject to the liabilities and obligations of a common carrier of goods for hire." It was further alleged that defendant, disregarding its duty to safely carry and deliver the goods, failed to make delivery and that demands for payment had been refused. After motion to strike had been made by defendant and denied by the court, defendant filed an answer in which it admitted the transportation of Holeproofs goods in its truck, but alleged that the loss of the goods was due to highjacking of the truck near Chicago by four men who, at gun point, forced defendants employees to surrender the truck and to enter the highjackers automobile. Defendants tractor and trailer were later recovered by the police, but the cargo was never recovered. In its answer defendant asserted that it was not negligent in connection with the highjacking incident; that, if any negligence ligence was shown, the proximate cause of the injury was the highjacking of the truck and not defendants negligence. Defendant also averred that the arrangement for transportation was oral and was merged in the written bill of lading subsequently issued in the transaction and that defendant therefore, under the provisions of the bill of lading, was liable only as a contract carrier answerable for negligence. A motion for summary judgment filed by defendant was granted.