171 Pa. Super. 23 | Pa. Super. Ct. | 1952
Opinion by
Plaintiff, Arabian American Oil Company, shipped 12 boxes of earthenware sinks from Trenton Potteries Company, in Trenton, New Jersey, to the warehouse of defendant E. A. Gallagher in Philadelphia oyer the motor freight lines of appellant, Kirby & Kirby, Inc., a common carrier. Earthenware is fragile and because these sinks ultimately were to be exported, the manu
The only markings on the shipment were the words “This Side Up” on the top of each box. But the failure of the shipper to mark the packages as “fragile” does not relieve the carrier from liability under the circumstances. The principle of Bell Tel. Co. v. Am. Rwy. Exp. Co., 92 Pa. Superior Ct. 180, on which appellant strongly relies, is not controlling here. In that case the shipment was a box of radio tubes -of “delicate and fragile construction”, which, were destroyed in transit. Judgment was entered against the shipper
The earthenware sinks were properly packed for shipment from Trenton to Philadelphia. It is therefore unimportant that they were consigned to defendant Gallagher for the purpose of testing the sufficiency of the packing to withstand rough handling by foreign stevedores and others in exporting them to Arabia, the' ultimate destination of the shipment. In general a common carrier is regarded as an insurer against
From the fact that the bill of lading provides that the carrier shall have the benefit of any insurance effected by the shipper, appellant’s second argument is that'reimbursement of plaintiff for the loss by its insurer, absolves appellant carrier from liability. We well might decide the question against appellant because of its failure to plead payment in its answer to plaintiff’s complaint. Payment is an affirmative defense which under the Rules of Civil Procedure and specifically Pa. R. C. P. 1030, must be pleaded responsively under the heading of new matter. Otherwise thé' defense will be regarded as waived. Of. Comment on Rules 1030 and 1045, 2 Anderson Pa. Civ. Pract. pp. 452, 455, 461, 462, 677 and 678; Janco v. John Hancock Mut. Life Ins. Co., 160 Pa. Superior Ct. 230, 50 A. 2d 695.
But even on the merits appellant has no ground for complaint. The insurer in this instance paid the plaintiff the amount of its damage as a loan repay
Judgment affirmed.