Standard Combed Thread Co. v. Pennsylvania R. Co.

• Decision Date: 15 November 1915
• Docket Number: No. 12.,12.
• Citation: 95 A. 1002
• Parties: STANDARD COMBED THREAD CO. v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

95 A. 1002

STANDARD COMBED THREAD CO.

v. PENNSYLVANIA R. CO.

No. 12.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by the Standard Combed Thread Company against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Gaskill & Gaskill, of Camden, for appellant. G. Dore Cogswell, of Camden, for appellee.

PARKER, J. The question for decision is whether defendant, as a common carrier engaged in interstate commerce, is liable for the destruction by fire of certain goods of plaintiff intended to be consigned to parties in Ohio from Beverly, in this state, where plaintiff's factory is located. Defendant maintained what is called a "public siding" near plaintiff's factory, and was accustomed to place cars thereon for the convenience of plaintiff and other shippers in loading. The station of defendant company was one-half mile away, and the custom was for plaintiff to telephone for a car when needed, to defendant's freight agent at the station, and a car would be placed, and the shipper allowed 48 hours to load it. When defendant was notified the car was loaded, it would be moved by defendant to the freight station or its immediate vicinity, the doors would be sealed, and a bill of lading would be issued. Until such sealing the doors remained unfastened.

On the occasion in question, the plaintiff ordered a car on June 12th. When it was placed does not appear, but the stipulation of facts shows that it was loaded on the 13th and the loading finished at 6 p. m., at which time the freight office was closed; and no notice that the car was ready was given to defendant. The car remained in place with doors unfastened that night, and took fire, or was set on fire during the night, and the contents destroyed. Defendant claimed that there had been no delivery to it, and, if there had been, that it was protected by a clause in its "uniform bill of lading" prescribed by the so-called Carmack amendment, which clause reads as follows:

Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and when received from or delivered on private or other sidings, wharves, or landings shall be at owner's risk until the cars are attached to and after they are detached from trains.

The trial court held that there had been a delivery, and, conceding that under the federal legislation relating to interstate commerce the rights of the parties after delivery were regulated by the terms of the uniform bill of lading, though none had in fact issued, held as a matter of construction of the clause in question that the words "private or other siding" excluded a "public siding" such as that in question, and held defendant liable.

Our examination of the case leads us to the conclusion that there was error in both rulings.

First, we think there was no complete delivery. The place was not a station. No agent of the defendant was in attendance or exercising any supervision. No notice that the car was ready had been given to the defendant, and, until the receipt of such notice or the expiration of the 48 hours allowed for loading, defendant's agents were entitled to assume that the loading was not complete. The general common-law rule is that there must be a delivery and acceptance, and, while acceptance may be inferred from the receipt of notice, there must be notice. 6 Cyc, 412, 413. Special circumstances, such as the existence of a custom relieving the shipper from the requirement of notice, or actual knowledge by the carrier, may modify the rule, but there was no such custom in this case; on the contrary, the custom was for the shipper to give notice to the carrier. The ease of Illinois Central R. Co. v. Smyser, 38 Ill. 354, 87 Am. Dec. 301, is relied on by plaintiff; but in that case, though the other circumstances were similar, it appeared that the agent of defendant was notified the cars were ready, and received manifests of their contents at the usual time. On the other hand, in Southwestern R. Co. v. Webb, 48 Ala. 585, it was held...