9 Pa. Super. 129 | Pa. Super. Ct. | 1898
Opinion by
On March 10, 1896, the defendant company received at its station at Rosenhayn, N. J., three boxes directed to one Davis Kahn, which contained material of the value of $700, to be made into clothing. The consignee resided in the village, and had previously received goods at this station a number of times, but did not make any inquiry as to these three boxes. On
Letters bearing dates of March 16 and 17, were exchanged between the parties, but, as they are not printed by the appellant we assume that their contents are not material. During the night of March 18-19 the warehouse in which the goods were left was forcibly entered by thieves, who broke open two of the boxes and stole the contents of one and a part of the other. The next day one of the plaintiff firm went to the station and under his claim of title secured the remainder of the goods, and directed their shipment to Philadelphia, which was promised to be done by the local agent of the defendant, but under the advice of counsel, the goods were held by the railroad company, and for these goods the plaintiff recovered a verdict for 1314.71, and brings this appeal because the court on the trial below refused to charge the jury, as follows: “1. If the jury find that the merchandise shipped by the plaintiffs to Rosenhayn was their own property and that Davis Kahn had no title thereto, then the defendants are not relieved by the fact that a constable levied upon the goods of the plaintiff as the property of Davis Kahn by virtue of an attachment issued against Kahn. 4. If the jury should find that the defendant did not receive notice of the reshipment previously to a part of the goods being stolen, then, as respects that part of the goods, the defendants were acting as warehousemen, and if they failed to exercise ordinary care over the plaintiff’s goods, then they are liable for the full value of the goods stolen, as well as those not delivered upon the request of the plaintiffs.”
The record of the justice shows that on March 16, after the seizure under the attachments, hearings of the causes were fixed by the justice for April 7, until which time the goods would be in the eustody of the law so far as the defendant was concerned: Hemmenway v. Wheeler, 14 Pick. 408; 25 Am. Dec. 411; Drake on Attachments, secs. 290, 350, 453. The
There is nothing in the evidence to show that the employees of the railroad company at Rosenhayn knew, or had reason to know until the attachments were levied on March 16, that Davis Kahn was an absconding debtor, and would not make demand of the company for the goods consigned to him, or, that until March 20, any other person than Davis Kahn claimed to be the owner of the goods, hence, the railroad company was not under any duty to notify the consignor that the goods were unclaimed at the station house. The plaintiff, however, contends that, after having knowledge of the attachment, it must either defend the proceeding or give immediate notice to the consignor. It is not the duty of the carrier or warehouseman to resist an officer who is armed with a valid attachment, or seek to evade the service of process, and the act of defendant’s local agent in permitting the constable to levy upon the three boxes of goods was not improper. The goods were directed to Davis Kahn, against whom the process was issued in proceedings whose regularity is not questioned, and there was nothing in the markings of the boxes or in the'bill of lading to indicate that the property belonged to any other person. By the contract of shipment, the defendant company was to be regarded as the agent of the owner, and as such, alone liable for any ’ negligence, loss, or damage of the goods, and by the present plaintiff’s act in directing the boxes to Davis Kahn, without ■ other indicia of ownership, the presumption of law is that he was the owner of the goods: Bingham v. Lamping, 26 Pa. 340.
By another clause in the contract it is provided, viz: “ The carriage of said merchandise shall be complete, and freight charges earned, when it has been held a reasonable time, say twelve working hours, subject to the owner’s order at the station or place where it is above agreed to be delivered, and if not then removed by the person or party entitled to receive the same, it may be removed and stored or kept in the car, station or place of delivery of the carrier, or otherwise at the sole risk and further expense of such person or party without notice.” In the case before us the goods were seized, under valid legal
In Robinson v. Memphis R. Co., 16 Fed. Rep. 57, it is held that the duty to preserve and protect goods while in charge of a carrier imposes on the carrier the liability of either assuming all the dangers of loss, by wrongful seizure of process, to the consignor by undertaking the defense of the suit with success, or by giving immediate notice to the consignor to appeal and defend for himself.
In Bliven v. Hudson River R. Co., 36 N. Y. 403, it was held that a common carrier is exonerated from his obligation to his bailor, where the property of the latter is taken from him by due legal process, provided the bailor is promptly notified of such taking.
In Hansen v. Chase, 37 Fed. Rep. 708, a maritime case, it was held that the master of a vessel in all such exigencies has authority to do whatever is necessary to preserve the interests of a foreign owner or consignee. He is bound to the exercise of diligence and good faith; to give the owner or consignee timely and needful information, and to take his instructions when practicable.
The limitation of time within which the carrier, as such, was to be responsible, was a reasonable-one, and after the goods had been in the station house for twelve working hours the liability of the carrier became modified, and it was only bound to exercise ordinary care to secure the safety of the goods: Steamship
There was no evidence to show that other station houses of the defendant or that other buildings in the neighborhood received any greater protection or surveillance than was given to this one, and if this defendant gave to these goods the usual and customary care which was adopted by other railroads, under similar conditions, and subjected its own property to the same risk which produced this loss, it would require clear proof of omission of precautions commonly taken by other persons, in the same or a like business, to justify a recovery, as was held in Zell v. Dunkle, 156 Pa. 353. Where there is proof of the fact of the injury and the manner of its occurrence under circumstances which do not impute negligence to the defendant, there is no liability of the carrier, whose contract was for a limited liability only, except upon proof of negligence as an inducing cause of the injury and the burden of making such proof is upon the plaintiff: Farnham v. Camden & Amboy R. R. Co., 55 Pa. 53; Patterson v. Clyde, 67 Pa. 500; Buck v. Penna. R. Co., 150 Pa. 170.
In the case in hand the relation of the defendant at the time of the loss, was that of a warehouseman; the presumed owner was Davis Kahn, the consignee; the seizure was proper under valid process; the loss occurred while the goods were in the custody of the law; the real owner was not known to the de
The judgment is affirmed.