| N.J. | Nov 17, 1910
The opinion of the court was delivered by
This action was brought to recover the value of four hundred and one watches claimed to have been delivered by the. International Watch Company to the Delaware, Lackawanna and Western Railroad Company, to be carried from Hoboken, New Jersey, to Portland, Oregon, which watches were lost to the plaintiff in transit. No testimony was offered by the defendant. At the close of the plaintiff’s case a nonsuit was moved and denied, and a verdict was directed by the trial court in favor of the plaintiff. There was an exception to the refusal of the court to nonsuit. There was no objection entered to the direction of a verdict for the plaintiff.
The nonsuit was moved for on several grounds. The principal ground argued on this appeal is that there was not adequate proof that the watches in question were delivered by the
The plaintiffs state of demand sets out that the plaintiff delivered on January 2d, 1908, to the defendant,- two crates, each of which contained five- boxes containing in all five hundred (500) clock watches, to be conveyed from Hoboken, Hew Jersey, to Portland, Oregon. It was not, however, admitted that the defendant received the two crates from the plaintiff, but it left that to be proved.
The testimony shows that five hundred watches wure packed in the factory of the plaintiff, fifty boxes each containing one watch were packed in a wooden box, and five of these wooden boxes were packed in a crate, and there were two crates of these wooden boxes, each box wired and sealed at the end. On the dial of each watch was the name H. S. Tuttle. These wooden boxes were sealed, and were so crated that the seals were visible. These crates were made up in the presence of witnesses employed by the complainant, and were delivered to the Dodd, Childs Express Company on December 31st, 1907, the day they were packed. They were received by one Tulles, an employe of the Dodd, Childs Express Company, and were carried by him to the Monticello Avenue station of the express company, and on that same day were taken to the First Street .station of the express company. The evidence is clear that Herman Hardy received these goods on the morning of January 2d, 1908, at the First Street station platform and delivered them . to the defendant that same morning.
The evidence of the transportation of these goods from the plaintiff’s factory into the possession of the defendant was such that the court- had a right to assume it as proved; at any rate there was no such defect in proof as to justify a nonsuit. The same may also be said of the evidence that the goods were received in the condition in which they left the factory of the plaintiff, with the seals unbroken and the contents undisturbed.
If shipped, the loss of four hundred and one of these watches is admitted; for it is stipulated that upon'the crates being opened, that number of watches were missing, and bricks wrapped in paper were substituted. It is stipulated that the
It is insisted that there was no damage proved, but an officer of the International Watch Company testified that each watch was worth fifty cents, and his testimony was competent.
It is again insisted that the suit for the loss of these watches should not have been brought by the International Watch Company. But the International Watch Company was the consignor who, so far as appears, selected the common carrier to make the delivery of these goods; and there is nothing to show the transfer of title to the consignee.
It is again insisted that the crates containing the boxes in question were turned over bj' the Delaware, Lackawanna and Western Railroad Company to the Wabash Railroad Company, the next connecting carrier, in good condition, and that the seals of the boxes were broken when received by the consignee at Portland, Oregon, a point far beyond the termination of the appellant’s route.
It is also insisted that the rule is that the last of a line of connection carriers is presumed, in the absence of proof to the contrary, to have received the freight in the same condition it was delivered to the initial carrier; and it being proved that it was received by the defendant in good order, the presumption is that the injury resulted from the negligence of the last carrier.
Aside from the question last propounded, the question supervenes whether, it being admitted that the defendant was engaged in interstate commerce in the transportation of the crates in question, its liability is not controlled by section 20 of the Interstate Commerce act, as amended on June 29th, 1906. 34 U. S. Stat at L., pp. 593, 595, § 7.
This section provides that "any common carrier, railroad or transporta lion company receiving property for transportation
The defendant claims that this clause of the Interstate Commerce act does not impose a liability upon the initial carrier, unless such initial carrier shall issue a receipt or bill of lading for the property received. This contention, in substance, is, that although the defendant upon receipt of these goods for shipment failed in its duty to issue a receipt or bill of lading therefor, it by reason of such failure escaped the liability which would have rested upon it had it performed its statutory duty.
With this construction of the twentieth section of the act, I am unable to agree. The words “lawful holder” in the clause which provides that a common carrier shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, &c., were used to include not only the shipper, but any assignee of the bill of lading; and where no bill of lading is given, the shipper himself stands in the same position as if he 'was the lawful holder of such bill of lading, and the liability of the company to such shipper is the same liability as is imposed in favor of the lawful holder of a receipt or bill of lading.
So we think that, under the federal statute, the shipper was entitled to bring this action against the defendant.
Respecting the refusal of the court to grant a continuance of the trial because of the absence of some records which the counsel for the defendant wished further time to obtain, we think the judicial action was clearly within the discretion of the court-
We think there was no error of which the appellant can avail itself, and that the judgment should be affirmed.