Richardson v. Railway Exp. Agency, Inc.
| Decision Date | 10 March 1971 |
| Citation | 258 Or. 170,482 P.2d 176 |
| Parties | Mark J. RICHARDSON, Respondent, v. RAILWAY EXPRESS AGENCY, INCORPORATED, dba Rea Express, Appellant. |
| Court | Oregon Supreme Court |
John R. Bakkensen, Portland, argued the cause for appellant. With him on the briefs were King, Miller, Anderson, Nash & Yerke, and Clifford N. Carlsen, Jr., Portland.
Raymond R. Bagley, Jr., Portland, argued the cause for respondent. With him on the brief were McColloch, Dezendorf, Spears & Lubersky, and James C. Dezendorf, Portland.
This is an action by a shipper against a carrier to recover damages alleged to have been caused by the misdelivery of a shipment of electronic equipment from Portland to Richmond, Virginia. The complaint also seeks to recover attorneys' fees under ORS 743.114, providing for attorneys' fees in actions on policies of insurance. Defendant appeals from a judgment in favor of plaintiff for $2,027.50 in damages and $600 in attorneys' fees.
Defendant contends that the trial court erred in holding that delivery could only be made at Richmond, Virginia, to plaintiff (who was named in the shipping receipt or bill of lading as the consignee) and that delivery to Georgia-Pacific Corporation was improper. Defendant also contends that the trial court erred in holding that the 'declared value' provision of the shipping receipt constituted a policy of insurance.
Plaintiff is the manufacturer of automatic controls used in plywood plants. Defendant is a common carrier. Plaintiff entered into an agreement with Georgia-Pacific Corporation for the sale of an electronic timing device for installation at its plant in Emporia, Virginia. It does not appear whether or not there was any written contract. According to the testimony, however, the equipment was being sold 'on 30 day approval,' with the right of the purchaser to return it if not satisfied at the end of that period, but with the obligation to pay for the equipment if satisfied at that time. Under that arrangement, however, plaintiff was under obligation to install the equipment and for that reason had it shipped to himself at the Richmond airport, where he expected to pick it up for installation at the Georgia-Pacific plant in Emporia, some 65 miles away.
Accordingly, one of plaintiff's employees had the equipment packed in a container, weighing a total of 61 pounds, and delivered it to defendant at the Portland airport for shipment by air express to Richmond, Virginia. Plaintiff's employee who made that delivery testified that he told defendant's employee at the airport to ship the container to Richmond and to hold it there for plaintiff to pick up at the airport. Defendant's employee then filled out a form which served as a shipping record for the defendant, with one copy to be attached to the shipment. That form was filled out by defendant's employee to name plaintiff as the 'consignee,' with 'Georgia-Pacific Corp' as his 'street address.' Plaintiff's employee testified that the reason for naming Georgia-Pacific Corporation was that 'that was the final destination and they evidently had to have it,' but that he told defendant's employee to 'hold' the shipment at the airport for plaintiff.
The shipping receipt or bill of lading, as filled out by defendant's employee, however, did not indicate that the shipment was to be held at the Richmond airport and defendant offered testimony that, according to company regulations, if such instructions had been given such a notation should have been made on that document and a separate label should also have been attached to the package, which was not done in this instance. 1
The equipment was then shipped by Eastern Airlines to Richmond, Virginia. Meanwhile, plaintiff flew to Richmond, arriving there three hours after arrival of the shipment. He then rented a car to take the equipment to Emporia for installation. Upon contacting Eastern Airlines, however, he was told that 'they didn't know anything about it' and was finally told that it had been shipped by bus to Emporia. He then went to the bus depot there, but refused to take delivery when he observed that a hole was torn in one corner of the container and that a 'steel plastic covered cable was pinched almost in two,' leading him to believe that 'it had to fall at least 20 feet.' The equipment was later shipped back to plaintiff at Beaverton, Oregon where the equipment was found to be damaged beyond repair.
No testimony was given by anyone who had personal knowledge of the facts relating to the arrival of the equipment in Richmond or its condition at that time. Defendant's claims adjuster testified, however, that if there had been any 'visible damage' a notation to that effect should have been made on the 'express receipt,' which was not done. He also testified that upon arrival of the shipment at Richmond one of defendant's employees prepared a 'Collect Delivery Record,' in which he mistakenly 'transposed' or 'reversed' the name of plaintiff and Georgia-Pacific Corporation, so as to read that the consignee was 'Georgia-Pacific Corporation' and that its street address was 'c/o Mark Richardson.' 2 This witness also testified that defendant's 'man' in Richmond did not know plaintiff, but did know Georgia-Pacific Corporation and had a 'due bill' of $40.25 for freight, so 'in essence' he billed those charges to Georgia-Pacific.
It also appears that the package was delivered by defendant to Georgia-Pacific Corporation at Richmond, Virginia, after payment by it of the shipping charges, and that one of its employees then arranged to have it shipped by bus to Emporia. According to plaintiff's testimony, however, Georgia-Pacific had not been told by him that the shipment was arriving at the Richmond airport, but knew only that the equipment was to be installed by plaintiff during that month at its Emporia plant.
It is conceded that the shipping receipt was a straight bill of lading, as defined in 49 U.S.C. § 82, because it stated that the goods were 'consigned or destined to a specified person.' Under the terms of 49 U.S.C. § 89, a carrier is 'justified' in delivering goods to one who is either the 'consignee named in a straight bill for the goods' or 'a person lawfully entitled to the possession of the goods.' It is conceded, however, that if a carrier delivers goods to any other person it is liable in damages for such a wrongful delivery.
Defendant's primary contention is that Georgia-Pacific Corporation was 'a person lawfully entitled to the possession of the goods.' In considering this contention it must first be recognized that a carrier who makes such a contention after delivering goods to a person other than the named consignee or lawful holder of the bill of lading has the burden of proof to establish the ownership and right of possession of the goods at the time of such delivery. Stanchfield Warehouse Co. v. Central R. of Oregon, 67 Or. 396, 406, 136 P. 34 (1913); Wolfe v. Missouri Pacific Ry. Co., 97 Mo. 473, 11 S.W. 49, 51 (1889).
In support of this contention defendant urges that Georgia-Pacific Corporation was not only named on the bill of lading as the 'street address' of the plaintiff, but 'as purchaser under the acceptance agreement, Georgia-Pacific had the right to retain the timer for 30 days without payment if it so desired,' and that 'it took delivery as purchaser, paid the transporation charges,' citing Elgin Mills, Inc. v. Chicago & North Western Ry. Co., 177 Neb. 110, 128 N.W.2d 384 (1964).
In Elgin, however, while there was a sale of goods on acceptance, the court expressly found (at p. 389) that 'the very purpose of the agreement was the delivery of the seed to Rudy-Patrick for the purpose of testing,' for 'unloading and testing,' and that 'Rudy-Patrick was clearly entitled to the possession of the seed by agreement with the owner * * *.'
In this case, on the contrary, not only did defendant fail to establish any such contractual terms, but plaintiff testified directly that under his agreement with Georgia-Pacific he was to personally install the equipment at the plant and that he did not even notify Georgia-Pacific of the shipment of the equipment to Richmond, much less agree that it take delivery upon arrival there. Plaintiff also offered testimony that upon the initial delivery of the equipment to defendant at the Portland airport plaintiff's employee gave express instructions that the goods were to be held for plaintiff at the Richmond airport. While this was denied by defendant, it offered no evidence sufficient to sustain its burden of proof to establish that at the time of the arrival of the shipment in Richmond, Virginia, Georgia-Pacific was either the owner of the equipment or entitled to its possession.
Defendant also cites Erskine Williams Lumber Co. v. John I. Hay & Co., 160 So. 650 (La.App.1935). In that case goods were shipped under a straight bill of lading naming the shipper also as the consignee, 'c/o John I. Hay Company.' The court held that the carrier was 'justified' in making delivery to Hay, but did so not only because the bill of lading was in such terms, but also because there had been prior dealings between the parties under which such deliveries had been made and that there was nothing at the time of the last shipment to call the attention of the carrier to any change in the relations between the parties. Thus, since the bill of lading in this case did not name plaintiff as consignee 'c/o Georgia-Pacific Corporation' and since no evidence was offered of delivery of prior shipments to Georgia-Pacific we do not regard Erskine as requiring a different result in this case. We have also considered other authorities cited by defendant and find none of them to be directly in point. 3
It is common practice for goods to be shipped under a bill of lading in which the shipper is...
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