60 Ind. App. 191 | Ind. Ct. App. | 1915
Appellee, a manufacturer of automobiles and automobile delivery trucks, at Auburn, Indiana, shipped over appellants’ lines an automobile delivery truck from Auburn, Indiana, to Valparaiso, Indiana, which was consigned by bill of lading to appellee’s order, notify Lowenstein & Sons at Valparaiso, and drew a sight draft on the latter for $712.50, with bill of lading attached, said bill of lading providing for delivery only on surrender of bill of lading. It is alleged in the complaint that delivery was made by appellants without payment of the draft, or surrender of the bill of lading, and recovery of the value of the truck is sought in this action as for a wrongful conversion of property. The material parts of the bill of lading, attached to and made part of the complaint read as follows:
“Order Bill of Lading — Original Agent’s No. ..... Received, subject to the classifications and tariffs in effect on the date of issue of this original bill of lading at Auburn, Ind., from W. H. McIntyre Co., the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) marked, consigned, and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof and which are agreed to by the shipper and ac*195 cepted for himself and his assignees. The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property. Inspection of property covered by this bill of lading will not be permitted unless provided by law or unless permission is endorsed on this original bill of lading or given in writing by the shipper. * * * (Mail address — Not for purpose of delivery.) Consigned to order of W. H. McIntyre Co. Destination — Valparaiso; State of Ind., County of * * *. Notify Lowenstein & Sons at * * *
Appellants answered the complaint in seven paragraphs, the first a general denial, and appellee filed a reply in two paragraphs, the first "a general denial. The court overruled appellants’ demurrer to appellee’s second paragraph of reply to the second, third and sixth paragraphs of appellants’ answer. The paragraphs of answer to which the reply is addressed, allege, in substance, that Lowenstein & Sons had contracted with the Security Automobile Company of Chicago, for the truck; that the Security Automobile Company was agent of appellee and handled its autos; that Lowenstein & Sons ordered a truck from the Security Automobile Company, and it ordered the truck from appellee; that the contract for the truck required eer- ■ tain equipment which did not accompany the shipment; that the truck was not to be shipped with draft attached, but was to be delivered overland and inspected so as to know it would operate in aceordance with the contract; that the Security Automobile Company and Lowenstein & Sons demanded inspection of the wagon before paying the draft; that they were entitled to an inspection of it, and the only way an inspection could be made to de
The second paragraph of appellee’s reply to which appellants’ demurrer was overruled, alleges that the Security Automobile Company of Chicago, .was engaged in the purchase and sale of automobiles. Prior to the shipment of the truck, it entered into a written contract to furnish Lowenstein & Sons a truck,'the terms of which contract were not known to appellee, and to fill the order, it ordered of appellee the truck in question by written contract, a copy of which is set out with the reply. It then sets out the terms of the bill of lading, with reference to delivery, and the delivering of it in violation of the terms, and thereupon appellee demanded payment; that while the motor truck was in the possession of the parties under such wrongful delivery, and after appellee had filed its claim with appellants'for the value of the truck, and was duly prosecuting said claim, it did, upon one or two occasions,
Over appellants’ motion for.a new trial judgment was rendered in appellee’s favor for $700.
The errors assigned and argued by appellants are the overruling of their demurrer to the second paragraph of reply addressed to the second, third and sixth paragraphs of appellants’ answer, and the overruling of their motion for a new trial.
In 4 Elliott, Railroads §1427 this language is found: “A direction in a bill of lading to consignor’s order to ‘notify’ some one else, does not warrant the carrier in delivering the property to the person so to be notified without the production of the bill of lading. The use of the term ‘notify’ shows that the party to be notified was not intended as the consignee, but was simply to be advised of the arrival of the goods. The fact that a bill of lading is made out to the consignor’s order makes this still plainer. Indeed, it has been held that such a contract is so plain and unambiguous that a custom in a certain city to deliver property under similar bills of lading to the person to be notified can not be shown.” Citing numerous authorities. The principle is also well supported in the following eases and notes thereto: Richmond, etc., R. Co. v. Payne (1890), 6 L. R. A. 849, 853; Pacific Express Co. v. Shearer (1896), 37 L. R. A. 177; Nebraska Meal Mills v. St. Louis, etc., R. Co. (1897), 38 L. R. A. 358. So that we conclude that if there was a delivery to a person other than the consignee, which is undisputed in this ease, in order to escape liability the appellants must justify their acts. The following cases sustain this principle. American Express Co. v. Greenhalgh (1875), 80 Ill. 68; Gilkinson v. The Scotland (1859), 14 La. Ann. 417; Wilcox v. Chicago, etc., R. Co. (1877), 24 Minn. 269; Wolfe v. Missouri Pac. R. Co. (1888), 97 Mo. 473; 11 S. W. 49, 10 Am. St. 331, 3 L. R. A. 539; Atchison, etc., R. Co. v. Schriver (1906), 72 Kan. 550, 84 Pac. 119, 4 L. R.
It is further argued that the employe of the Security Automobile Company had a right to direct the release of the truck, because the Security Automobile Company was the general agent of appellee, with power to so direct, and that therefore there was an informal waiver of the terms of the bill of lading by the agent of appellee, who had such authority. So far as the evidence in this case shows, said agent of the Security Automobile Company did not pretend to have such right, but as heretofore stated, based his request for release of the truck wholly upon the truth of the statement of the Security Automobile Company that it had been released as above stated. These facts uphold a finding that the truck was delivered without sufficient justification in so far as the question- of waiver is presented. It is held in the case of Sawyer v. Chicago, etc., R. Co. (1868), 22 Wis. 403, 99 Am. Dec. 49, that when goods are shipped to the order of the consignor, the carrier will not be justified in delivering them without such order, by the fact that one of
Instructions Nos. 6 and 11 tendered by appellee also go to the question of inspection and delivery, and are in harmony with the law as herein announced. No error was committed in giving them to the jury.
Note. — Reported in 108 N. E. 978. Liability of carrier for delivery of freight to -wrong person, see 9 Am. St. 511; 5 Ann. Cas. 100. See, also, under (1) 31 Cyc 338; (2, 6) 6 Cye 470; (3) 38 Cyc 2107; (8) 38 Cyc 1617,1657; (9) 38 Cye 1711; (10) 3 Cyc 380, 381.