Pennsylvania Railroad v. General Crushed Stone Co.

76 Pa. Super. 186 | Pa. Super. Ct. | 1921

Opinion by

Henderson, J.,

We regard the question raised on this appeal as decided in Pennsylvania R. R. Co. v. Whitney & Kemmerer, 73 Pa. Superior Ct. 588, and the cases therein cited, to which may he added Blanchard v. Page, 8 Gray 281; Wooster et al. v. Tarr, 8 Allen 270; New York Central R. R. Co. v. P. & H. Coal Co., 286 Ill. 267. The defendant was the consignor. The hill of lading was a contract between it and the plaintiff for the transportation of freight for the compensation agreed on. All of the authorities are to the effect that the consignor, whether the owner of the goods shipped or not, is the party with whom the carrier contracts for the transportation. He creates the bailment and is responsible for the cost thereof. Such a contract may be implied from the mere fact of the delivery of the merchandise for shipment. Nor is the primary liability of the shipper affected by the direction of the carrier to his employees that the charges on shipments must be collected before any part thereof is delivered. The bill of lading expressly charged the owner or consignor with the payment of the freight, and the direction with respect to collection from the consignees was in the interest of the carrier and not a contract relation with the consignor. It was a matter of indifference to the carrier whether the freight was paid by the consignor or the consignees, but the company had the right to adopt such instructions to its employees with reference to the collection of carrying charges as might be convenient or promotive of its interests. The carrier was not prejudicially affected by the knowledge of the shipper that a general direction was given that freight charges if not prepaid should be collected before delivery. In the absence of a contract to that effect, no duty rested on the carrier to collect from the consignee. It could waive the lien and deliver the freight without collecting the charges. It was to the consignor’s interest equally with the carrier’s to see that the freight hill was paid. Nothing in the case-stated shows that the carrier constituted itself an agent of the shipper to collect his debts and the fact that such charges might have been recovered from the consignee does not relieve him from the primary liability to pay. The case of Thomas v. Snyder, 39 Pa. 317, stands on its own facts and is not inconsistent with the principle stated in the cases cited. It turned on the fact that the carrier designated a particular person to whom the freight should be paid and that he failed to appear at the time and place when payment should have been made. The question which of two innocent parties should suffer arose in the case and was held to be a question for the jury. Central Railroad of N. J. v. Mauser, 241 Pa. 603, to which reference is made, arose under the interstate commerce law, and that part of the opinion quoted in the appellant’s brief is hypothetical. The authorities require us to hold with the court below that sufficient answer has not been presented to the plaintiff’s cause of action.

The judgment is affirmed.