
    Shatz, Appellant, v. American Railway Express Co.
    
      Carriers — Bills of lading — Limitation of time to "bring action— Evidence — Sufficiency.
    Judgment n. o. v. cannot be entered in favor of an express company on' tbe ground that tbe action was not brought within two years and a day after reasonable time for delivery of tbe goods bad elapsed, when there is no evidence in tbe record that the express receipt contained such clause of limitation.
    If tbe defendant company bad filed with tbe Interstate Commerce Commission a schedule and form of receipt containing tbe stipulation as to tbe time when suits must be brought, it was its duty to produce evidence to that effect at tbe trial. Not having done so, its existence cannot be supplied by inference and a verdict for tbe plaintiff will be sustained.
    Argued October 4, 1922.
    Appeal, No. 46, Oct. T., 1922, by plaintiff, from judgment of Municipal Court of Philadelphia County, Oct. T., 1920, No. 675, in favor of defendant non obstante veredicto, in the case of R. Shatz y The American Railway Express Company,
    Before Porter, Henderson, Trexler, .Keller and Gawthrop, JJ.
    March 2, 1923:
    Reversed.
    Assumpsit on contract of shipment. Before Bonniwell, J., without a jury.
    The facts are stated in the opinion of the Supreme Court.
    The trial judge found in favor of the plaintiff in the sum of $121.65, but subsequently the court in banc, on motion, entered judgment for defendant non obstante veredicto. Plaintiff appealed.
    
      Error assigned was the judgment of the court.
    
      James Yearsley, and with him Bernard A. Illoway and Harry Felix, for appellant.
    
      Alexander B. Staples, and with him T. DeWitt Ouyler, for appellee.
   Opinion by

Keller, J.,

This was an action by a shipper of goods, against an express company for the value of an interstate shipment which the carrier failed to deliver to the consignee.

It was tried by a judge of the municipal court without a jury, who found for the plaintiff in the sum of $121.65.

The court in banc subsequently entered judgment for the defendant notwithstanding the verdict, or finding of the judge, on the ground that the action had not been brought witbin two years and one day after a reasonable time for delivery bad elapsed.

Unfortunately for tbe defendant no evidence was produced which would support this action of the court in banc.

The shipment was made on July 3,1918. The original express receipt could not be produced or offered in evidence because the plaintiff had forwarded it to the defendant company at its request, in connection with his claim for reimbursement, and the company had lost or mislaid it. The defendant offered in evidence a certificate from the Interstate Commerce Commission showing the uniform express receipt, schedules, and express classifications filed by the defendant company and in force between August 22, 1918, and September 11,1919, wbicb contained tbe limitation of two years and one day invoked by tbe defendant and enforced by tbe court in banc; but tbe shipment in suit was made July 3,1918, a month and nineteen days before tbe date tbe above schedules and receipt went into effect, and there was no evidence in tbe case that tbe express receipt in force at tbe time of plaintiff’s shipment contained any such limitation. We cannot go outside tbe record and infer proof wbicb tbe defendant did not produce. Tbe Interstate Commerce Act (Act of Congress, Feb. 4, 1887, c. 104, s. 20, 24 Stat. 386, amended June 29,1906, c. 3591, s. 7, 34 Stat. 595, March 4, 1915, c. 176, s. 1, 38 Stat. 1196, .and. Aug. 4, 1916, c. 301, 39 Stat. 441, Barnes Fed. Code, section 7976, U. S. Comp. Stat. section 8604a,) does not fix any limitation upon tbe institution of suits, except that tbe transportation company may not prescribe a shorter period than two years. If tbe defendant! company, between tbe date of its incorporation, July 1,1918, and tbe receipt of this shipment, July 3,1918, filed with tbe commission a schedule and form of express receipt providing that suit must be instituted within two years and a day after a reasonable time for delivery bad elapsed, it was its duty to produce evidence to that effect at tbe trial, and not having done so its existence cannot1 be supplied by inference. Tbe court in banc was confined in its action to tbe evidence produced at tbe trial and unless that warranted a direction for tbe defendant judgment1 n. o. v. could not be entered. There being no evidence in tbe case to warrant a finding that tbe express receipt given tbe plaintiff, or in force July 3, 1918, contained tbe limitation of two years and one day, relied upon by tbe defendant, judgment could not be entered in its favor contrary to tbe finding of tbe trial judge.

Tbe assignment of error is sustained. Tbe judgment is reversed and tbe record is remitted to tbe court below with directions to enter judgment in favor of tbe plaintiff in accordance with tbe finding of tbe trial judge.  