Lake Shore & M.S. Ry. Co. v. W.H. McIntyre Co.

• Decision Date: 28 May 1915
• Docket Number: No. 8565.,8565.
• Citation: 60 Ind.App. 191,108 N.E. 978
• Parties: LAKE SHORE & M. S. RY. CO. et al. v. W. H. McINTYRE CO.
• Court: Indiana Appellate Court

60 Ind.App. 191

108 N.E. 978

LAKE SHORE & M. S. RY. CO. et al.

v.W. H. McINTYRE CO.

No. 8565.

Appellate Court of Indiana, Division No. 1.

May 28, 1915.

Appeal from Circuit Court, Steuben County; Frank M. Powers, Judge.

Action by the W.H. McIntyre Company against the Lake Shore & Michigan Southern Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.Walter Olds, of Ft. Wayne, F. B. Carpenter, of Cleveland, Ohio, and A. C. Wood, of Angola, for appellants.

P. V. Hoffman, of Auburn, and Brown & Carlin, of Angola, for appellee.

SHEA, C. J.

Appellee, a manufacturer of automobiles and automobile delivery trucks, at Auburn, Ind., shipped over appellants lines an automobile delivery truck from Auburn, Ind., to Valparaiso, Ind., which was consigned by bill of lading to appellee's order, notify Lowenstein & Sons at Valparaiso, and drew a sight draft on the latter for $712.50, with bill of lading attached; said bill of lading providing for delivery only on surrender of bill of lading. It is alleged in the complaint that delivery was made by appellants without payment of the draft or surrender of the bill of lading, and recovery of the value of the truck is sought in this action as for a wrongful conversion of property. The material parts of the bill of lading, attached to and made part of the complaint, read as follows:

“Order Bill of Lading-Original Agent's No. ___. Received, subject to the classifications and tariffs in effect on the date of issue of this original bill of lading at Auburn, Ind., from W. H. McIntyre Co., the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) marked, consigned, and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road,” otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof), and which are agreed to by the shipper and accepted for himself and his assignees.

“The surrender of this original order bill of lading property indorsed shall be required before the delivery of the property. Inspection of property covered by this bill of lading will not be permitted, unless provided by law, or unless permission is indorsed on this original bill of lading or given in writing by the shipper. ***

“[Mail address-Not for purpose of delivery.]

“Consigned to order of W.H. McIntyre Co.

“Destination-Valparaiso, State of Ind., County of ___

“Notify Lowenstein & Sons at. ***”

Appellants answered the complaint in seven paragraphs, the first a general denial, and appellee filed a reply in two paragraphs, the first a general denial. The court overruled appellants' demurrer to appellee's second paragraph of reply to the second, third, and sixth paragraphs of answer to which the reply is addressed allege, in substance, that Lowenstein & Sons had contracted with the Security Automobile Company of Chicago for the truck; that the Security Automobile Company were agents of appellee, and handled its autos; that Lowenstein & Sons ordered a truck from the Security Automobile Company, and it ordered the truck required certain equipment, which did not accompany the shipment; that the truck was not to be shipped with draft attached, but was to be delivered overland, and inspected so as to know it would operate in accordance with the contract; that the Security Automobile Company and Lowenstein & Sons demanded inspection of the wagon before paying the draft; that they were entitled to an inspection of it, and the only way an inspections could be made to determine whether or not it was in accordance with the contract was by putting the same together and testing and ascertaining whether it was in running order, and would carry the load guaranteed; that appellants allowed the Security Automobile Company and Lowenstein & Sons to take it from the car for inspection, and they ascertained it did not comply with the contract, and could not and would not run and be operated; that while it was being so tested appellee furnished its own employés to repair same, had work done upon it for the purpose of endeavoring to make it in accordance with the contract of purchase, and took parts of said motor delivery wagon back, and has ever since retained them, and furnished new parts to the same, acquiescing in and consenting to the inspecting of the same and testing of it, and, failing to complete it in accordance with the contract, it was returned to appellants, and held subject to appellee's order.

The second paragraph of appellee's reply, to which appellants' demurrer was overruled, allege that the Security Automobile Company of Chicago was engaged in the purchase and sale of automobiles. Prior to the shipment of the truck it entered into a written contract of furnish Lowenstein & Sons a truck, the terms of which contract were not known to appellee, and, to fill the order, it ordered of appellee the truck in question by written contract, a copy of which is set out with the reply. It then sets out the terms of the bill of lading, with reference to delivery, and the delivering of it in violation of the terms, and thereupon appellee demanded payment; that, while the motor truck was in the possession of the parties under such wrongful delivery, and after appellee had filed its claim with appellants for the value of said truck, and was duly prosecuting said claim, it did, upon one or two occasions, upon the request of the Security Automobile Company and Lowenstein & Sons, send mechanics from its shops to repair and replace broken parts of the truck, as the special warranty in the contract between it and the Security Automobile Company required it to do, and such parts were taken from the factory to repair the machine, and the broken parts returned for inspection to enable appellee to determine if it was liable under such warranty; that such repairs were made without any intention on appellee's part of waiving or abandoning its claim against appellants for the wrongful delivery of the motor wagon, of which intention appellants had due notice during all of said time; that whatever was done by appellee in making such repairs ensued to the benefits of appellants in the way of being an effort to get Lowenstein & Sons to accept said wagon and pay for it and relieve appellants from liability upon said wrongful delivery.

Over appellants' motion for a new trial, judgment was rendered in appellee's favor for $700.

The errors assigned and argued by appellant are the overruling of its demurrer to the second paragraph of reply addressed to the second, third, and sixth paragraphs of appellants' answer, and the overruling of its motion for a new trial. It is earnestly argued that the court erred in overruling appellants' demurrer to appellee's second paragraph of reply. The second, third, and sixth paragraphs of appellants' answer to the complaint, to which this paragraph of reply is addressed, are based upon the theory that Lowenstein & Sons had the right of inspection in the first instance; that if, upon inspection, they found the machine to be unsatisfactory, they might return it. We doubt whether these paragraphs of answer were sufficient as against a demurrer properly addressed thereto. At all events, the second paragraph of reply thereto, while by no means a model pleading, contained sufficient averments to avoid the material allegations of said paragraphs of answer.

The determination of a few questions will dispose of the many questions ably presented by counsel in their briefs in support of the contention that the court erred in overruling the motion for a new trial.

[1][2] The theory upon which the judgment and verdict rests is that there was a wrongful conversion of the property by appellants, and therefore they are liable for the value thereof. The bill of lading heretofore referred to contains the provision that:

“The surrender of this bill of lading property indorsed shall be required before delivery of the property. Inspection of property covered by this bill of lading will not be permitted unless permission is indorsed on this original bill of lading, or given in writing by the shpper, *** notify Lowenstein & Sons.”

While there is some conflict in the decided cases, which we do not attempt to reconcile, the great weight of authority sustains the doctrine that the delivery of property without justification to a party other than the consignee is a wrongful conversion thereof. The decisions of our own court as well as many others adhere to this principle. Merchants', etc., Co. v. Merriam, 111 Ind. 5, 11 N. E. 954;Cleveland, etc., R. Co. v. Wright, 25 Ind. App. 525, 58 N.E. 559;Chicago, etc., R. Co. v. Fifth National Bank, 26 Ind. App. 600, 605, 59 N.E. 43; Hutchinson on Carriers, § 177; Pennsylvania, R. Co. v. Commercial Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287;Merchants' Bank v. Union, etc., Co., 69 N. Y. 373;Dows v. National Bank, 91, U. S. 618, 23 L. Ed. 214;Hieskell v. National Bank, 89 Pa. 155, 33 Am. Rep. 745;Southern Ry. Co. v. Webb, 143 Ala. 313, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97;Watson v. Hoosac Tunnel Line Co., 13 Mo. App. 263;Libby v. Ingalls, 124 Mass. 503; 6 Cyc. 470.

In Elliott on Railroads (Ed. 1897) § 427, this language is found:

“A direction in a bill of lading to consignor's order to 'notify' some one else does not warrant the carrier in delivering the property to the person so to be notified without the production of the bill of lading. The use of the term 'notify' shows that the party to be notified was not intended as...