Tanner v. Oil Creek Railroad Co.

• Decision Date: 07 January 1867
• Citation: 53 Pa. 411
• Parties: Tanner <I>versus</I> The Oil Creek Railroad Company.
• Court: Pennsylvania Supreme Court

53 Pa. 411

Tanner versus The Oil Creek Railroad Company.

Supreme Court of Pennsylvania.

January 7, 1867.

ERROR to the Court of Common Pleas of Erie county.

COPYRIGHT MATERIAL OMITTED

G. W. DeCamp, for plaintiff in error, cited 1 Smith's Lead. Cases 319; Angell on Carriers, § 284.

J. W. Wetmore, for defendant in error, cited McCarty v. New York and Erie Railroad Co., 6 Casey 247; Angell on Carriers, p. 319; Wilbert v. New York and Erie Railroad Co., 2 Kernan 245.

The opinion of the court was delivered, January 7th 1867, by READ, J.

The evidence in this case is not contained in a bill of exceptions, nor is it certified from the judge's notes, but each party prints in his paper-book so much of it as he thinks proper. Such a practice is entirely irregular, and gives unnecessary trouble to the court in ascertaining what is the testimony, and whether it is the whole or only a part — and may probably prove injurious to either the plaintiff or defendant.

This non-compliance with our rules should be carefully avoided by counsel, whose clients as well as the court have a right to complain of it.

So far as the evidence is printed by the plaintiff, it appears that the father and agent of the plaintiff, on the 10th November 1864, delivered six bales of hops to the defendants at Corry, to be shipped to Shaffer. The freight agent at Corry received the hops, and carred them, and gave him a receipt for them. He agreed to ship them the next day or the next but one. Agent went to Shaffer on the next day, which was Friday, and the hops had not arrived. Stayed at Shaffer until Sunday, and the hops not having arrived, went to Titusville. On the Wednesday following (16th November), went to Corry, and the agent there told him that the car must be off on some switch. Had the agent put the number of the car in which the hops had been shipped on his bill. The number of the car was 6979. He then went clear through on foot along the railroad from Corry to Shaffer, and examined every switch and siding on the road, but could find no car of the number. Witness then said: "I again demanded the hops of the freight agent at Shaffer, but he said they had not arrived. He then took my post-office address, and agreed to give me notice if the hops should arrive. Went to Black, the superintendent of the road, and demanded the hops." He said, they would find the hops, and give me notice. The weight of the hops was about 1225 or 1250 pounds — had contracted to sell them at 55 cents per pound."

The telegrams received by the witness, from the different stations, were produced, as follows: —

From Corry to Shaffer: "W. T. R. B. R., Car 6979, Six Bales Hops for Tanner has left here. GILMAN."

From Titusville to Shaffer: "Car (6979) is not here. MAXON."

"Nov. 21, '64."

"To agent Shaffer. Is car 6979 at Shaffer. TANNER."

Answer: "W. Tanner, No Sir. R. B. KNAPP."

"Nov. 22, 1864."

Another witness was present when the hops were delivered at Corry, who said: "They agreed to ship them in two or three days. Went to the freight agent four or five days after, and he told him they had shipped the hops as they agreed to do. He afterwards told him he thought they were shipped to New York."

This was the plaintiff's case, except the bill of lading or receipt dated 10th November 1864, and signed by "A. N. Gilman, agent," in defendants' paper-book.

On the 2d December 1864 suit was commenced, and on the 17th of the same month copies of the writs were served on Black, the superintendent, and on Struthers, the president of the defendants, and the narr. was filed on the 29th December 1864.

The defendants gave in evidence the freight bill from Corry to Shaffer, dated November (12 erased),

                                              18th 1864
                   No. Car     Consignors      Consignees     Article   Weight   Charge
                (6979 erased)   Local          Wm. Tanner     6 Bales   1200     $2.16
                    1556                       Shaffer        Hops
                

and proved by their car reporter, that car No. 6979 was put into the shop siding for repair, on the 15th or 16th November 1864. From his memorandum, he should say, the car had a broken draw-head.

It was proved that the hops were first put into car No. 6979 — changed to 1566, because the other was broken — lost freight is found by a tracing sheet. Those two cars were Atlantic and Great Western cars. The company used cars of that road, and also New York and Erie cars; but witness said they had not motive power, and could not get it. It was proved by a former assistant superintendent, that the business increased fast in June 1864, and he applied to the superintendent for locomotives; and the machine-shop said they could make them in six months. Government had taken them from the machine-shops. It took two weeks' time to get freight through to Shaffer. He said — It is not a rule to give notice of the arrival of goods.

Mr. Knapp, the company's agent at Shaffer, proved the arrival of the hops in car No. 1566 at Shaffer, on 28th November, and that they were put into the warehouse. The witness said, "no person called for them after they were received: a week before a man called. I did not tell him that I would write him when they arrived. It is not the custom or rule of the office: it is against the rules. We have not time. The hops were in our way, and we inquired of brewers in Titusville and Plummer if they knew W. Tanner. We made efforts to find the owner."

"There was a general increase of business on the road. The delay in this case was not unusual. Freight was from two to four weeks from Corry to Shaffer."

It is clear that if notice of the arrival of the hops at Shaffer had been given to the plaintiff or his agent, this suit would not have been brought; and there is no evidence that after this action was commenced, and the writ was served on the president and on S. A. Black the superintendent, from whom the goods had been personally demanded, that any notice or information was given to the plaintiff of their arrival at Shaffer. On the contrary, it is stated in the history of the case: "The first time the plaintiff learned the hops had been found, was on the trial of this case, some twelve months afterwards." On the 17th December, one month after their arrival, the company knew, certainly, where the owner was to be found; and the freight agent at Shaffer had previously taken the post-office address of the plaintiff's agent and consignee.

The common-law rule is thus stated by Professor Parsons, in his excellent Treatise on Contracts, 5th edition, 1864, vol. 2, p. 183, "As the liability of the carrier begins with the delivery of the goods to him, so it continues until the delivery of the goods by him. For he is bound not only to carry them to their destined place, but to deliver them there to the bailor, or as the bailor may direct: and this he must do within what shall be a reasonable time, judging from all the circumstances of the case." "If the consignee refuse to receive the goods, or cannot...