Blakiston v. Davies, Turner & Co.

• Decision Date: 18 April 1910
• Docket Number: 56-1909
• Citation: 42 Pa.Super. 390
• Parties: Blakiston, Appellant, v. Davies, Turner & Company
• Court: Pennsylvania Superior Court

42 Pa.Super. 390

Blakiston, Appellant, v. Davies, Turner & Company

No. 56-1909

Superior Court of Pennsylvania

April 18, 1910

Argued October 7, 1909

Appeal by plaintiff, from judgment of C.P. No. 3, Phila. Co.-1904 No. 393, on verdict for defendant in case of Kenneth M Blakiston, trading as P. Blakiston's Son & Co. v. Davies Turner & Company.

Appeal from judgment of magistrate. Before McMichael, P. J.

The facts are stated in the opinion of the Superior Court.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendants.

Reversed.

C. W. Conard, of Conard & Middleton, for appellant. -- If the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risk of the carriage, the carrier is the agent of the vendor: Hutchinson on Carriers, secs. 1306, 1320; Hand v. Baynes, 4 Whart. 204; Ry. Co. v. Guano, 103 Ga. 590 (30 S.E. 555); Grogan v. Adams Express Co., 114 Pa. 523; Griffith v. Ingledew, 6 S. & R. 429; Dannemiller v. Kirkpatrick, 201 Pa. 218.

There was no variance: Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Crotzer v. Russel, 9 S. & R. 78; Geddis v. Irvine, 5 Pa. 508.

The plaintiff contends that the defendant is a common carrier within the meaning of the law fixing its liability as to shipments of goods: Beckman v. Shouse, 5 Rawle, 179; Lumber Co. v. Peoples Coal Co., 26 Pa.Super. 575; Bank of Kentucky v. Adams Express Co., 93 U.S. 174; American Express Co. v. Sands, 55 Pa. 140; Grogan v. Adams Express Co., 114 Pa. 523; Gulliver v. Adams Express Co., 38 Ill. 504; Mather v. American Exp. Co., 138 Mass. 55; U.S. v. Pacific Exp. Co., 15 F. 867; Christenson v. American Exp. Co., 15 Minn. 270; Read v. Spaulding, 5 Bosworth, 395; Southern Exp. Co. v. McVeigh, 20 Gratt, 264; Buckland v. Adams Exp. Co., 97 Mass. 124; New Jersey Steam Nav. Co. v. Merchants' Bank, 47 U.S. 344; Bank of Ky. v. Adams Exp., 93 U.S. 174.

But, even as a " forwarder" the question should have been submitted to the jury in this case, whether or not there was negligence on the part of the defendant: Hoeveller v. Myers, 158 Pa. 461; Woodruff v. Painter, 150 Pa. 91; Shenk v. Propeller Co., 60 Pa. 109; Verner v. Sweitzer, 32 Pa. 208; Hoyt v. Clinton Hotel Co., 35 Pa.Super. 297; Lamb v. Irwin, 69 Pa. 436; Grambs v. Lynch, 20 W.N.C. 376.

C. Bradford Fraley, with him Henry N. Paul, Jr., for appellees. -- Defendant is not a common carrier and is not liable as such: Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 106 N.W. 749; American Express Co. v. Second Nat. Bank, 69 Pa. 394; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Davenport v. R. R. Co., 10 Pa.Super. 47; Farnham v. R. R. Co., 55 Pa. 53; Patterson v. Clyde, 67 Pa. 500.

The right of action was in the consignee alone: Morberger v. Hackenberg, 13 S. & R. 26; Dannemiller v. Kirkpatrick, 201 Pa. 218; Frank Bros. & Co. v. R. R. Co., 9 Pa.Super. 129; P. & R. R. R. Co. v. Wireman, 88 Pa. 264; Bacharach v. Chester Freight Line, 133 Pa. 414.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

RICE, J.

This action was brought in the name of William C. Lyon to the use of Kenneth M. Blakiston, trading as P. Blakiston's Son & Co. Before the jury was sworn the record was amended by striking out the name of William C. Lyon and retaining the name of Kenneth M. Blakiston as legal plaintiff. The form of action was assumpsit, and the cause of action declared upon was the breach of a contract, of which the following shipping receipt issued by the defendant, a corporation, to the present legal plaintiff was a material part:

" (Not Negotiable) Aug. 4, 1902.

" Received of P. Blakiston's Son & Co.

" (1) One Box of books.

" Marked --

" W. C. Lyon, 200 Judd Bldg., Honolulu.

" For shipment per . . . . or other steamer.

" Value $ 52.00 . . . . for which we charge . . . .

" Hawaiian Territory."

The blank spaces are as they appear in the copy of the receipt attached to the affidavit of defense. Then follow certain pertinent clauses, the material parts of which we quote:

" It is part of the consideration of this contract, and it is agreed that the said Davies, Turner & Co. are forwarders only and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said Davies, Turner & Co. intrusted, or for any loss arising at any time from the dangers of railroads, ocean or river navigation, . . . . or from any cause whatever, whether arising from the negligence of servants or employees or otherwise, unless in every case, the same is proved to have occurred from the fraud or negligence of said Davies, Turner & Co."

" And if the same is intrusted or delivered to any express company, railroad, vessel or other carrier, whether named in this receipt or not (which said Davies, Turner & Co. are hereby authorized to do, subject to all the usual conditions of transportation of such carrier), such company or person so selected shall be regarded exclusively as the agent to the shipper or owner, and as such, alone liable, and Davies, Turner & Co. shall not be, in any event, responsible for the negligence or nonperformance of such company or person."

On the trial of the case the plaintiff gave evidence tending to establish the following facts: The plaintiff was a publisher of books in Philadelphia. W. C. Lyon was a bookseller in Honolulu. Lyon ordered from the plaintiff, by letter, seven sets of a medical work of several volumes, to be delivered to Lyon in Honolulu, without other directions as to the mode of sending them than that they should be forwarded the quickest way. On August 4, 1902, plaintiff delivered the box of books to the defendant marked as stated in the shipping receipt, paid the freight charges to Honolulu and mailed to Lyon a bill for the price of the books together with the freight charges and cost of packing, and a duplicate of the shipping receipt. The usual time of transit from Philadelphia to Honolulu for goods shipped by freight was from twenty-five to forty days. The package was not delivered to Lyon, but was delivered by mistake to the Honolulu Library, and, unconditional delivery of it to Lyon was not tendered until February, 1903, when he refused to accept it. In the meantime, the plaintiff, at his request, mailed to Lyon seven other sets of the same books, which were received by Lyon about December 15, 1902.

The first question to be considered is, whether the consignor could maintain the action as legal plaintiff. In the foregoing statement we have said that the books were ordered to be delivered to Lyon in Honolulu. The letter containing the order was not produced, but the plaintiff's shipper testified without objection, that the books were to be so delivered, and while the effect of his testimony on this point was weakened by his cross-examination, it was not wholly destroyed. The subsequent conduct of the parties was in harmony with the contention, that, in the intention of plaintiff and Lyon, the books were to be delivered to the latter in Honolulu. In one of the most recent Pennsylvania cases upon the subject it is said to be well settled that in the absence of an agreement to the contrary, when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser; and especially is this true when a bill of lading naming the purchaser as consignee is transmitted to and received by the purchaser: Dannemiller v Kirkpatrick, 201 Pa. 218, 50 A. 928. This doctrine is relied on by appellee's counsel but it should be noted that the same case is authority for the proposition, that if it is the intention of the parties, and it so appears from the contract, that delivery is to take place at the destination of the property, and that the title is to remain in the consignor until that time, then delivery to the carrier does not divest the title of the vendor to the property, nor pass it to the purchaser, until it reaches its destination, and the hazards of transportation are at the risk of the consignor. " It, therefore, becomes a question in cases of this character as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute it is a question of law for the court, but if the evidence is conflicting," and, we add, if different inferences may be drawn from the undisputed facts, " the question must be determined by the jury." This distinction is well illustrated by a comparison of the case of Griffith v. Ingledew, 6 S. & R. 429, and Hand v. Baynes, 4 Whart. 204. In the latter case, after pointing out that the former case was decided on the ground that the bill of lading vested the legal property in the consignee, and that for the purpose of deciding the legal property, the court would look to the face of the bill of lading, Justice Rogers went on to say: " But this is not a bill of lading but a contract between the consignor and the carrier, and in actions against common carriers, the general principle is, that the right of action is attached to the property." And in conclusion he said: " But in cases where the right of property is not divested, the consignor can maintain a suit, for he is the person who has sustained the loss, if any, by the negligence of the carrier; and whoever has sustained the loss is the proper party to call for compensation, from the person by whom he has been injured." One of the rules laid down in Hutchinson on Carriers, which is well supported by principle and authority is, that when the risk of safe transportation of the goods is upon...