Josephy v. Panhandle & S.F. Ry

• Decision Date: 20 March 1923
• Parties: JOSEPHY et al. v. PANHANDLE & S. F. RY.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 306

139 N.E. 277

JOSEPHY et al.

v.PANHANDLE & S. F. RY.

Court of Appeals of New York.

March 20, 1923.

Action by Hugo Josephy and others against the Panhandle & Santa Fé Railway. Judgment for plaintiffs entered on a directed verdict was unanimously affirmed by the Appellate Division (-- App. Div. --, 194 N. Y. Supp. 947), and defendant appeals.

Judgments reversed, and complaint dismissed.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

A. S. H. Bristow, of New York City, for appellant.

Bern Budd, of New York City, for respondents.

POUND, J.

The defendant, Panhandle & Santa Fé Railway, issued a bill of lading in which it acknowledged receipt of certain packages marked as containing dressed poultry, ‘the contents and condition of contents of packages unknown.’

Relying on this bill of lading, plaintiffs paid a draft for $4,000 drawn by the shipper. Some of the packages, instead of containing poultry, were packed with rabbits and eggs. A verdict was directed in favor of the plaintiffs for $2,019.43, the amount of the damage claimed.

Section 21 of an act of Congress, effective January 1, [235 N.Y. 309]1917 (U. S. Comp. St. § 8604k), entitled ‘An act relating to bills of lading in interstate and foreign commerce,’ commonly called the Pomerene Act, provides that where a bill of lading contains a statement that ‘the contents or condition of the contents of packages are unknown, * * * such statements, if true, shall not make liable the carrier issuing the bill of lading, although the goods are not of the kind or quantity or in the condition in which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor.’

In this case the bill of lading states in so many words that the contents and condition of contents of packages are unknown. The effect of this recital is not overcome by the following words which are emphasized by counsel for the plaintiffs:

+-----------------------------------------------+
                ¦Description of Articles¦Weight                 ¦
                +-----------------------+-----------------------¦
                ¦and Special Marks.     ¦(Subject to Correction)¦
                +-----------------------+-----------------------¦
                ¦Dressed Poultry        ¦20,000 Lbs.            ¦
                +-----------------------------------------------+
                

These words amount to nothing more than a statement of the description supplied by the consignor. They do not revoke or overrule the defendant's express disclaimer of knowledge of the contents. Dworkwitz v. New York Cent. R. Co., 230 N. Y. 188, 129 N. E. 650. It is unnecessary for the carrier to insert in the bill the words, ‘shipper's weight, load and count,’ or other words of like import, when it plainly appears that contents are unknown to the carrier and that the words of description are the words of the consignor and are superfluous except for the purposes of identification. Leigh Ellis & Co. v. Payne (D. C.) 247 Fed. 443, affirmed, on other grounds (C. C. A.) 276 Fed. 400. The carrier says that the contents of the packages are unknown, but that the description is as stated. No inconsistency arises. Miller v. Hannibal & St. J. R. Co., 90 N. Y. 430, 43 Am. Rep. 179.

Section 22 of the Pomerene Act (section 8604kk) reads as follows:

‘If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several states and with foreign nations, the carrier shall be...