70 Ind. App. 616 | Ind. Ct. App. | 1919
Appellant filed a complaint before a justice of tbe peace to recover of appellee the sum of $77 on account of demurrage charges arising out of the alleged detention and use of thirty-two cars delivered to appellee on its private sidetrack at Indianapolis, Indiana, beyond the free time allowed consignees, by rules on file with the Public Service Commission of Indiana for loading and unloading cars. An exhibit accompanied this complaint as a part thereof, which gave the initials and numbers of the cars in question, with the dates of their delivery to appellee, and the dates of their release by him. Before such justice of the peace appellee filed an answer in general denial and what he termed a set-off. In the latter he alleged in substance, among other things, that he had purchased large quantities of coal in carload lots in Indiana, which had been delivered to appellant at Terre Haute for the purpose of being transported to him at Indianapolis, a distance of seventy-two miles; that nine of said cars, while in the possession of appellant, were withheld by it in transportation for an unreasonable length of time; that by §5205 Burns 1914, Acts 1907 p. 434, appellant was required to transport said cars of coal at a rate of speed equal to fifty miles each twenty-four hours, with an additional twenty-four hours at point of origin and junction points to perform necessary switching; that said cars ordered by, and shipped to, appellee were not shipped at the rate of speed required by said statute; that appellee was the owner of the coal contained in said cars, and was the consignee thereof. An exhibit
being no evidence to the contrary, the presumption prevails that the title to such coal thereby vested in said consignee. Pennsylvania Co. v. Holderman (1879), 69 Ind. 18; Cleveland, etc., R. Co. v. Moline Plow Co. (1895), 13 Ind. App. 225, 41 N. E. 480; Butler v. Pittsburgh, etc., R. Co. (1897), 18 Ind. App. 656, 46 N. E. 92; McNeely & Co. v. Lake Shore, etc., R. Co. (1917), 64 Ind. App. 363, 115 N. E. 954. Under these circumstances the Power Coal Company, as such consignee, had the right to reconsign such coal in transit. Tebbs v. Cleveland, etc., R. Co., supra. The evidence tends to show that, in pursuance of such right, said company, on or before the days on which the cars of coal in question were received by appellant at Terre Haute from its connecting line, made written requests of appellant to reconsign and forward said coal to appellee at Indianapolis, and to show said company as consignor in the billing; that appellant received and accepted such written requests, and, in pursuance thereof, transported said cars of coal from Terre Haute to Indianapolis, and delivered the same to appellee. The effect of' such written requests, when accepted by appellant, was to create new contracts of
It is also contended that the evidence does not show what shipping instructions, if any, were given appellant for the transportation of said coal, or that appellee was named as consignee therein. An examination of the written requests for the reconsignment of said coal, which the evidence tends to show were received, accepted and acted upon by appellant, disclose instructions for its shipment to appellee at Indianapolis, Indiana. Appellant’s contention, .therefore, is not well taken. It is further contended that the number of hours the coal was in transit is not shown, but we are of the opinion that the evidence furnished sufficient data in that regard to sustain the decision of the court as to the amount found due appellee by reason of the alleged delay in shipment.
We find no error in the record. Judgment affirmed.