181 Iowa 1052 | Iowa | 1917
Plaintiff further alleges, in an amendment to its petition, that the shipment was delivered as above, and was carried by the Chicago Great Western, the initial carrier, to Des Moines, and there delivered by it to the Wabash Railway Company, and carried by it to some point unknown to the plaintiff, and delivered to the other defendant, the Philadelphia & Reading Railway Company; that the last named company carried the goods to Philadelphia. The plaintiff further alleges that, upon the arrival of the wool in question at Philadelphia, the same was taken possession of by the defendant the Philadelphia & Reading Company and there converted to the use of said company, to the loss and damage of the plaintiff in the sum claimed; that the wool arrived at Philadelphia about June, 1909; that none
In the second count of its petition, the plaintiff makes all the allegations of the first count a part of 'the second count; and alleges that the wool in question was delivered to the Chicago Great Western Company, to be carried by it to St. Louis; that both the Chicago Great. Western and the Wabash were initial carriers; that they wholly failed to deliver the wool to the plaintiff at St. Louis or elsewhere, or to notify the plaintiff, so that it could obtain the same; that they negligently and without authority from the plaintiff caused said wool to be reshipped from St. Louis to Philadelphia; that neither of said companies had authority to do so, and had no authority to deliver it to the Philadelphia & Reading Company or to cause the wool to be moved over the lines of said company; that the Philadelphia & Reading Company had no authority from the plaintiff to move said wool, and that plaintiff had no knowledge that it exercised such authority; that all of said companies, defendants, acted jointly, and all were negligent in failing to notify plaintiff of the movements of the wool, and in failing to deliver the same to the plaintiff, and in failing to notify the plaintiff where it was, so that plaintiff could obtain possession.
In the third count, plaintiff makes all the preceding allegations a part of this count, and alleges that none of the defendants had any authority to move the wool from St. Louis to Philadelphia, and that, in moving it, they acted negligently and without authority, and all were negligent in respect to the matters hereinbefore referred to.
In the fourth count of plaintiff’s petition, plaintiff alleges that, upon the arrival of the wool in Philadelphia, it was taken possession of by the defendant the Philadelphia & Reading Railway Company, and converted to its own use; that, after the shipment reached St. Louis, the plain
The defendants filed separate answers.
The Chicago Great Western Railroad Company, answering, admits: That, on or about the 29th day of May, 1909, at the station of Mclntire on its line of road, it received a consignment of wool from the plaintiff, consigned to the plaintiff at St. Louis, Missouri; that it carried said wool on its line to the city of Des Moines, and there delivered it to the Wabash Railway Company, its codefendant; that the Wabash Company carried it to St. Louis; that, after it had delivered the wool to the Wabash, this defendant received instructions from the plaintiff, or one of its agents, to reconsign the wool to Philadelphia; that it immediately issued instructions by telegram to the Wabash Company to reconsign the wool to Philadelphia; that said wool was thereupon reconsigned and carried by the Wabash Railway Company and other carriers to Philadelphia; that, immediately upon the arrival of the wool in Philadelphia, there was a notice mailed to the Adams Seed Company, addressed to General Delivery, Philadelphia, Pennsylvania, of the receipt of said goods; and that, after the expiration of four days from the date of the .mailing- of the notice, the Philadelphia & Reading Company moved and stored said wool in a public licensed warehouse in Philadelphia, where the same remained, without being claimed
The answer of the Philadelphia & Reading Company we need not set out, for the reason that, at the conclusion of all the testimony, the plaintiff dismissed its claim as to the Philadelphia & Reading Company.
Thereupon, on motion of the other defendants, the court directed a verdict for them, and, a verdict being returned in accordance with the direction of the court, plaintiff’s petition was dismissed, and plaintiff appeals.
There is practically no dispute in the evidence on any material fact. It will be noted from a reading of the several counts of plaintiff’s petition that it seems to base its right to recover upon two separate and distinct grounds: one, as for a conversion by the Philadelphia & Reading Company, at Philadelphia; the other, as for a conversion by the other defendants, at St. Louis.
In the original petition, the plaintiff says that the wool in question was shipped by the several defendants from Mc-Infjre to Philadelphia, and that it was received by the defendants for shipment to Philadelphia. The language used is rather obscure, but, considering the original petition in all its fullness, it is apparent that it wás the intention of the plaintiff in said petition to charge as for a conversion at Philadelphia, on the theory that the wool was consigned to itself at Philadelphia and received by the Philadelphia & Reading Company on such consignment as a common carrier. Plaintiff 'says that all the defendants are common carriers; that they received and had possession of said wool as common carriers; that it was • consigned to the plaintiff; that it was carried to its destination at Philadelphia; that the companies failed to deliver it to the plaintiff as consignee at Philadelphia and failed to notify plaintiff of its receipt at its destination at .Philadelphia; and alleges that the conversion took place at Philadelphia and that the con
In other counts of the petition, the allegation is made that, when the plaintiff placed the goods in charge of the initial carrier, it consigned them to itself at St. Louis; that there was no authority on the part of the initial carrier or the Wabash Company to reconsign it; that, by the reconsignment, there was a conversion at St. Louis, because it was a disposition of the property not authorized by the plaintiff, and in violation of the duty which these defendants owed to the plaintiff.
At the conclusion of the testimony, and after the plaintiff had dismissed its claim against the Philadelphia & Reading Company, the remaining companies moved the court to require the plaintiff to elect upon which state of facts it would rely as for a conversion. There seems to have been no election made, and thereupon, the motion to direct a verdict was sustained.
The record shows tha t the plaintiffs were called* as witnesses in their own behalf, and the substance of their testimony is to the effect that the wool was shipped to the Adams Company, as consignee, at St. Louis, without direction as to whom notice should be given to of its arrival there; that they had no office at St. Louis at the time, and had no one to represent the consignee on the arrival of the goods. One of the plaintiffs testified:
“When I delivered the wool to the agent of the initial carrier, I told him I wanted to sell either at St. Louis or Philadelphia, whichever market was the best. We had no agent at St. Louis or at Philadelphia at the time, and no Philadelphia address; had shipped to Philadelphia before then. We had an arrangement with the Pennsylvania road over which we shipped all our wool to Philadelphia that, as soon as any shipment from us arrived there, it should*1061 be turned over to the C. J. Webb & Company, and our wool was shipped to our own address. I said, nothing to the agent, if I did reconsign the wool, that I wanted it to go over the Pennsylvania. We got notice in March, 1912, I think, from the Reading Railway Company. I gave no orders for its disposition; did not go and look at the wool It was my best judgment not to. I never gave the agent at McIntyre orders to reconsign the wool at Philadelphia.”
The other member of the plaintiff firm testified:
“Neither myself nor the Adams Seed Company, follow: ing the date of its delivery at Mclntire, advised or instructed the agent at Mclntire to reconsign the wool.”
It appears, however, from correspondence between the Reading people and the plaintiff, which occurred about September, 1912, that the plaintiffs expressed no surprise when they found their goods in the possession of the Reading Company at Philadelphia, but sent the following letter:
“We enclose you herewith our claim * * * for shipment of wool made by us from Mclntire, Iowa, May 29, 1909, consigned to our order at St. Louis, Missouri, and subsequently reconsigned to our order at Philadelphia, at which place it arrived June 20, 1909. * * * We base our claim on failure on the part of the delivering carrier to promptly notify us of the inability to deliver shipment, * * * so that disposition could have been made, thus preventing loss to us. We have allowed the freight on shipment, but do not believe that we should pay storage charges, as, if we had been given proper advice at the time, there would have been none. * * * (Signed) Adams Seed Company.”
With this letter was enclosed an account against the Philadelphia & Eeading Company in favor of the Adams Seed Company for the loss of the wool.
This amount not being paid, the plaintiff brought the action against the Philadelphia & Reading Company, and
The first question that presents itself for consideration, therefore, is: Was there a reconsignment by the plaintiff of this wool to Philadelphia, such as authorized the, companies to transport it to Philadelphia through the ordinary avenues of transportation? If there was, and upon arrival at Philadelphia the wool was lost to the plaintiff through the negligence of the Philadelphia & Reading Company, the question arises: Did the loss occur while it was in the possession of the Philadelphia & Reading Company as a carrier, or was there negligence of the Philadelphia & Reading Company at Philadelphia, as a common carrier of the goods, for which the other defendants would be liable?
In Hides v. Wabash R. Co., 131 Iowa 295, this court, speaking upon this question, said, in Division 2 of the opinion:
“But the defendant was, beyond question, a common carrier of goods as to plaintiff’s trunk from New Conception to Shenandoah, for it undertook to transport the trunk for a reasonable compensation to be paid, and the only question on this branch of the case is whether its liability as common carrier had terminated and that of warehouseman had arisen before the destruction of the trunk by fire in defendant’s station house; for it is conceded that the loss was one for which the defendant would be liable if it still held the trunk as common carrier, but would not be liable if the trunk was in its possession as warehouseman. The rule which has been consistently adopted by this court from the beginning is that the liability of the common carrier, as such, terminates when the goods have reached their destination and are ready for delivery to the consignee, and that thereafter the carrier is warehouseman only, even though the consignee has received no notice of the arrival of*1065 the goods at their destination and has had no opportunity to take them away (citing authorities). The general weight of authority, no doubt, is that the carrier remains liable as carrier until the consignee has had a reasonable opportunity to take the goods.”
It follows, therefore, that, upon the receipt of the goods at Philadelphia by the Philadelphia & Reading Company, this Philadelphia & Reading Company was required to hold the goods for delivery to the consignee for a reasonable time. During that time, the initial carrier, the Chicago Great Western, remained liable for any loss or injury to the goods while so in possession of the Philadelphia & Reading Company as delivering carrier. After a reasonable time, the relationship of the Philadelphia & Reading Company to the goods as common carrier ceased. It thereafter held the goods as warehouseman only, and for any loss or injury to the goods while it remained in the possession of the Philadelphia & Reading Company, the Philadelphia & Reading Company would not be liable as carrier, but only for negligence as warehouseman. Under the Carmack Act, the initial carrier is not liable for the negligence of the delivering carrier after its relationship as carrier has ceased, and its duty to the plaintiff and to the goods becomes that of warehouseman only. Or, in other words, if the transit was at an end, if the delivering carrier had ceased to have possession of the goods as carrier and held them in another capacity, as warehouseman, then the delivering carrier was responsible only for the care and diligence which the law attaches to that relation, and the loss occurring while held in that relation does not reach back and involve the initial carrier or any connecting carrier.
As supporting what we have said, see Norway Plains Co. v. Boston & M. Co., 1 Gray (Mass.) 263 (61 Am. Dec. 423); Gregg v. Illinois Cent. R. Co., (Ill.) 35 N. E. 343; and
“When goods which have been received by a railroad company for transportation to a given station on its line of road and delivery there to the-consignee of the same reach their destination and are there deposited by the company in its freight warehouse for safe-keeping until delivered to such consignee, the general rule is that the responsibility of the company as a common carrier ceases, and its liability as a warehouseman begins.”
See also Hogan Milling Co. v. Union Pac. R. Co., (Kans.) 139 Pac. 397. In this case it is held that it was not the purpose of the Carmack Amendment to make the initial carrier liable where the connecting carrier’s liability as a carrier has ceased, and it was said:
“It was not the purpose of the amendment to extend the carriers’ common law liability, except to provide that, until the transportation ended, the liability of an initial carrier should continue exactly the same as if it owned one line of railway from the point of shipment to the point of destination.”
It was further said:
“The initial- carrier, under the Carmack Amendment, is only made liable for loss, injury or damage resulting from some default in its common law duty as a common carrier, or some default of the same kind in a succeeding carrier. It does not make the initial carrier liable as a carrier for a loss or injury to goods occurring while held by the succeeding carrier as warehouseman.”
In Norfolk & W. R. Co. v. Stuart’s Draft Milling Co., 63 S. E. 415, the Supreme Court of Virginia said that, if goods are not received by the consignee within a reasonable time after their arrival, the railroad company’s liability as a common carrier ceases, and its liability thereafter is only as a warehouseman.
It appears that, when this wool reached Philadelphia, over the Philadelphia & Reading line, the Philadelphia & Reading line sent notice to the consignee, addressed to it at Philadelphia, in care of general delivery; that it thereafter held the goods for. a reasonable time, and then deposited them in a public warehouse for the use and benefit of the consignee; that the goods were never called for by the consignee; and that, in 1912, notice was sent to the consignor at Decorah of the fact that the goods were in storage, and that they would' be sold for charges if the charges were not paid; that neither the consignee nor the consignor, the same person, made any claim to the goods, but preferred a bill against the Philadelphia & Reading Company for the value of the goods. A letter accompanying the bill and a statement of the account are hereinbefore set out.
* It is apparent, then, that whatever loss occurred to the plaintiff by any act of the Philadelphia & Reading Company occurred after the Philadelphia & Reading Company had ceased to be a carrier and had become a warehouseman, and cannot be charged to preceding carriers. It follows, therefore, that no liability, for any negligence of the Philadelphia & Reading Company, as warehouseman, could reach back and affect the initial carrier, the Chicago Great Western Railroad Company, under the Carmack Amendment. The Wabash Company could not, in any event, be
The liability of these defendants on this theory cannot be considered, for the reason that whatever was done in the way of reconsigning these goods to the plaintiff at Philadelphia, after they reached St. Louis, was ratified by the plaintiff with full knowledge of all the facts upon which they now predicate the liability of these defendants. To hold the defendants as for a conversion at St. Louis is wholly inconsistent with the claim of a conversion at Philadelphia. In asserting a conversion at Philadelphia by the Philadelphia & Reading Company, the plaintiff affirms its ownership and right to possession of the goods at Philadelphia, and negatives a previous conversion of the same by these other defendants at St. Louis. It amounts to a waiver of any conversion at St. Louis, ratifies the act of those companies in transporting the goods to Philadelphia,
' There is some difficulty in understanding the plaintiff’s theory or theories in this case. One theory seems to be that there was a conversion at Philadelphia by the Philadelphia & Reading Company as.common carriers, for which the initial carrier, the Great Western, is liable under the Carmack Amendment. Even on this theory, the Wabash could not be liable, as connecting carrier. The second theory is that the shipment was made originally, and so far as authorized by the plaintiff, over the Groat Western and the AVabash to St. Louis; that neither of these companies had any authority to reconsign or transport the goods beyond that point; that, when they did attempt to so do, •their act was, in effect, a conversion of the property by both of these comx>anies at St. Louis, for which each is liable. If the case stopped there, there might be some basis for holding these companies liable; but when the plaintiff proceeds further, and by its conduct ratifies the reconsignment of these goods from St. Louis to Philadelphia, the situation is the same as if originally the plaintiff had consigned the goods to itself at Philadelphia. If it ratified the reconsignment, all these companies became common carriers of the goods do Philadelphia, and the initial carrier, the Great Western, but not the connecting carrier, the Wabash, would be liable as for a conversion at Philadelphia, provided the conversion took place while the property was
As sustaining the, claim of these defendants that the plaintiff ratified the reconsignment to Philadelphia in bringing suit against the Philadelphia & Reading Railway Company as delivering carriers, and basing the liability of the Chicago Great Western on the allegation that it was initial carrier, and therefore liable for the acts of the Phila-* delphia & Reading Company as delivering carrier, see Converse v. Boston & M. R. Co., 58 N. H. 521. In that case the plaintiffs contracted to furnish slate to one C. for a schoolhouse which C. was then erecting, to be “cash on delivery.” The slate was ordered directed to themselves at F. Plaintiffs found the goods at the schoolhouse and workmen engaged in putting it on. C. was not there. They sued C. Soon after, C. called on the plaintiffs and gave them an order on the school district. The order was not accepted or paid. The plaintiffs were never paid. They commenced an action against C., afterwards dismissed the action, and brought an action against the railroad company as for a conversion. The court said:
“If the delivery was authorized, the plaintiffs have no claim against the defendants. If the delivery was unauthorized, and they subsequently ratified it, the ratification is equivalent to an authorized delivery, and is an effectual bar to the plaintiffs’ recovery.”
See also Burritt Co. v. New York Cent. & H. R. R. Co.,
So it follows that, the plaintiff having ratified the re-consignment to Philadelphia, and- these companies having transported the wool over their lines to Philadelphia, without the occurrence of any negligence during transportation, and the goods having been received at Philadelphia over the Philadelphia & Reading lines in good condition, so far as this record shows, and the Philadelphia & Reading Company having held it a reasonable time as common carriers, and having given notice to the consignee at the place of destination, and the plaintiff having failed to call for said goods within a reasonable time, and the Philadelphia & Reading Company having stored the same for the use and benefit of the plaintiff, and the liability of the Philadelphia & Reading Company as carriers having .ceased, no liability attaches to these defendants for any acts of the Philadelphia & Reading Company after said goods had passed out of its hands as carrier, and while it held the same, if it did so, as warehouseman.