American Ry. Exp. Co. v. Ewing Thomas Converting Co.

• Decision Date: 20 August 1923
• Docket Number: 2928.
• Citation: 292 F. 335
• Parties: AMERICAN RAILWAY EXPRESS CO. v. EWING THOMAS CONVERTING CO.
• Court: U.S. Court of Appeals — Third Circuit

292 F. 335

AMERICAN RAILWAY EXPRESS CO. v. EWING THOMAS CONVERTING CO.

No. 2928.

United States Court of Appeals, Third Circuit.

August 20, 1923

Rehearing Denied October 4, 1923.

Wm. A Schnader, of Philadelphia, Pa., for plaintiff in error.

Geary &amp Rankin and J. L. Rankin, all of Chester, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

On September 26, 1919, defendant in error entered into a contract through a broker with the Morrowebb Cotton Mills Company for the purchase of 25,000 pounds of mercerized yarn at $2 per pound, to be shipped from Dallas, N.C., to Chester Pa., at the rate of 2,000 pounds weekly, beginning January, 1920. Pursuant to the contract the Morrowebb Company delivered at Dallas, N.C., on March 3, 1920, to the American Railway Express Company, 16 rolls of the yarn, containing 1,489.6 pounds, to be shipped to the plaintiff at Chester, Pa. Eight days later, March 11, 1920, 2 of the 16 rolls were delivered to the consignee at Chester. The express company was notified that the other 14 rolls had not been delivered. It appears that the 14 rolls were addressed on the package to the plaintiff at Philadelphia, instead of Chester, Pa., though the address was correctly stated on the shipping receipt, given by the Express Company to the shipper; but the plaintiff did not have an office or place of business in Philadelphia, and so the defendant was unable to deliver the 14 rolls there.

The plaintiff contended at the trial that one month after the delivery of the two rolls on March 11, 1920, was sufficient time within which to discover the mistake in the address and deliver the 14 rolls to the plaintiff in Chester, and that the measure of damages was the difference between the price of the yarn on April 11, 1920, when it should have been delivered, and on September 21, 1920, when it was delivered.

There was evidence sufficient to establish that the market price of the cotton on or about April 11, 1920, was $3.20 per pound, and on September 21, 1920, $1.15 per pound. The trial judge instructed the jury that the measure of damages was the difference between the price of the yarn at the time it should have been delivered and the price on September 21, 1920, when it was delivered, but left it to the jury to determine, under all the evidence, when the mistake should have been discovered and the yarn delivered. The jury rendered a verdict for the plaintiff in the sum of $2,743.26, and the case is here on writ of error.

A common carrier is liable in damages for failure to deliver within a reasonable time property which it undertakes to carry from one place to another. This liability, however, may be modified by contract exempting the carrier from liability for loss from a specified cause. Bair v. Adams Express Co., 66 Pa.Super.Ct. 106; National Line Steamship Co. v. Smart, 107 Pa. 492. The receipt given by the defendant to the shipper provided that:

'(4) Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage or delay caused by: (a) The act or default of the shipper or owner; (b) the nature of the property, or defect or inherent vice therein; (c) improper or insufficient packing, securing, or addressing.'

There is no doubt about the rule of law, independent of statute, that where a shipper misdirects goods and a loss results solely from such misdirection, the loss falls upon the shipper whose careless conduct caused it. Congar v. Chicago & Northwestern Railway Co., 24 Wis. 157, 1 Am.Rep. 164; Treleven v. Northern Pacific Railroad Co., 89 Wis. 598, 62 N.W. 536; Lake Shore & Michigan Southern Railway Co. v. Hodapp, 83 Pa. 22.

We think that the defendant has borne the burden of establishing that the delay in delivering the 14 rolls of yarn was primarily due to 'improper addressing.' Therefore the defendant, on the authority of Bair v. Adams Express Co. and National Line Steamship Co. v. Smart, supra, contends that it is free from liability for loss due to delay in making delivery. This contention is sound, if the misdirection in shipping was the fault of the shipper.

But a further question arises: If the 'improper addressing' was the fault of the shipper, were the discovery and the delivery to the consignee at the proper address made within a reasonable time thereafter? To make these within a reasonable time was the duty of the defendant, even though the cause of the delay in the first place was 'improper addressing' of the shipper. Finding it impossible to make delivery of the yarn in Philadelphia, and having delivered 2 rolls of the same shipment to the consignee at Chester, it must have been obvious that an error had been made in directing the yarn to Philadelphia, and under such circumstances both duty and reasonable prudence dictated that the defendant make inquiry of the consignor for the...