201 F2d 846 Penney Co v. American Exp Co

201 F.2d 846

J. C. PENNEY CO., Inc.



No. 151.

Docket 22549.

United States Court of Appeals Second Circuit.

Argued February 3, 1953.

Decided February 9, 1953.

Atkins & Weymar, New York City, for appellant, Horace T. Atkins, New York City, of counsel.

Carter, Ledyard & Milburn, New York City, for appellee, Edwin H. Krom and Heywood Shelley, New York City, of counsel.

Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.



The principal question presented by the appeal is whether the Express Company acted only as a forwarding agent or assumed the liabilities of a common carrier. There would be no occasion to add to Judge Goddard's able and thorough opinion, 102 F.Supp. 742, except for the fact that his opinion makes no reference to the case so strongly urged as controlling upon the appeal, namely, Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156. That opinion, although "the considerations which control our conclusion" are somewhat enigmatically expressed, 241 U.S. at page 551, 36 S.Ct. at page 715, appears to have held the Express Company secondarily liable because it accepted a bill of lading limiting the ocean carrier's liability. In the case at bar the course of dealings between the parties makes it perfectly plain that the Express Company was not expected nor authorized to secure a value bill of lading from the American Export Lines. Indeed, at the opening of the trial the proctor for the libellant expressly withdrew the claim that a value bill of lading should have been obtained, which probably accounts for Judge Goddard's making no reference to Reid v. Fargo.


Decree affirmed on opinion below.