165 P. 363 | Or. | 1917
delivered the opinion of the court.
Plaintiff’s right of action in this case is based wholly on its contention that where goods cannot be delivered by a terminal carrier in accordance with the contract of transportation, the duty devolves on such carrier to notify the owner of the goods, whether he be consignor or consignee. This principle is challenged by counsel for defendant. The liability of an initial carrier under the Carmack Amendment is only that imposed by the common law on its connecting carrier: Adams Express Co. v. Croninger, 226 U. S. 491, 511 (57 L. Ed. 314, 44 L. R. A. (N. S.) 257, 33 Sup. Ct. Rep. 148); Judson on Interstate Commerce (2 ed.), § 46. The common law was evolved before the days of mail and telegraphs. We cannot, therefore, expect to find in the common law anything more than a statement in general terms of the duties devolving on a common carrier when it becomes impossible for the carrier to deliver shipments in accordance with the contract of carriage.
“It is in the interest of the public that the consignor should be promptly notified when the shipment is not delivered.”
We think the interests of the carrier are subserved by a rule which requires notice to the consignor within a reasonable time after the refusal or failure of the consignee to accept delivery. A rule which requires such prompt notification will be of value in releasing the rolling stock of the carrier and making it available for future business. Ordinarily, a postcard notification would be sufficient.
The authorities cited by the defendant state no consistent rule. Some of them hold that the duty of carriers is a variable duty, dependent upon the circumstances: The Keystone v. Moies, 28 Mo. 243, 246 (75 Am. Dec. 123); Manhattan etc. Co. v. Chicago etc. R. Co., 9 App. Div. 172 (41 N. Y. Supp. 83, 85); Kremer v. Southern Express Co., 6 Cold. (46 Tenn.) 356. Some of the authorities relied on by defendant involve no question of notice: Fisk v. Newton, 1 Denio (N. Y.), 45 (43 Am. Dec. 649); Ginnochio etc. Co. v. Missouri etc. R. Co., 153 Mo. App. 598 (134 S. W. 1028). Others of the authorities cited sustain defendant’s contentions: Hudson v. Baxendale, 2 Hurl. & N. 575; Weed v. Barney, 45 N. Y. 344 (6 Am. Rep. 96). These cases are out of harmony with the weight of American authority and, in our judgment, are not sustained by sound reasoning.
The lower court charged the jury in the case at bar that the terminal carrier was chargeable with the duty of due diligence -in the protection of the property of plaintiff’s assignors and that if the jury found that reasonable care of the property required notice to
“When the goods reached He Soto, Ga., and B. E. Howe, on being notified of their arrival, refused to accept them, it was incumbent upon the carrier to notify Dreyfuss-Weil Company of this fact, for, if they had been notified that their goods were there, they might have taken steps to protect themselves. The bill of lading showed that the goods were the properly of Dreyfuss-Weil Company. The goods were consigned to their order. While there is some conflict in the decisions on the subject, the better rule is: That, where the consignee refuses to accept the goods, the carrier*408 must notify the consignor of this fact if the hill of lading is sufficient to show that he is the owner of the goods. This rule has the approval of the United States Supreme Court and the Supreme Court of Georgia. See American Sugar Refining Co. v. McGhee, 96 Ga. 27 (21 S. E. 383); Hutchinson on Carriers (3d ed.), § 721. When Howe refused to accept the goods, the carrier held them subject to the shipper’s order, and notice to the shipper was essential to his protection. We therefore conclude that the Seaboard Air Line having failed to notify Dreyfuss-Weil Company of the refusal of Howe to accept the goods was liable to the shipper for the subsequent destruction of the goods while lying in its warehouse.”
We think the case last cited correctly states the law. It appears from the books that goods are frequently shipped consigned to the order of the shipper, with instructions to notify someone for whom the goods are intended: North Penn. R. Co. v. Commercial, Nat. Bank, 123 U. S. 727, 736 (31 L. Ed. 287, 8 Sup. Ct. Rep. 266); 4 Elliott on Railroads, 1427, 1530; 4 R. C. L., p. 842. The purpose of shipping in this manner is plain; it is the intention of the shipper in every such ease to exact payment of the purchase price of the goods on delivery. In the case at bar plaintiff proved without objection from the defendant a general custom to ship in this manner when the shipper is unwilling to extend credit to the purchaser by whom the goods are ordered. The answer shows affirmatively that the purpose and effect of shipping in this manner were understood by the defendant.
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass”: 34 Stats, at Large, p. 595.
The defendant cites Norfolk etc. R. Co. v. Stuart’s Draft Mill Co., 109 Va. 184 (63 S. E. 415, 416, 417); Hogan Mill Co. v. Union Pacific Co., 91 Kan. 783 (139 Pac. 397). These authorities seem to sustain the defendant’s contention, but the construction of this statute is a federal question and the United States Supreme Court has construed it: New York etc. R. Co. v. Peninsula etc. Exchange, 240 U. S. 34, 37 (60 L. Ed. 511, 36 Sup. Ct. Rep. 230). This was an.action for damages .arising from delay in the transportation of merchandise. It was contended that the initial carrier was not liable, inasmuch as no injury had been done to the goods, and the case therefore fell without the operation of the amendment. The court said:
“We need not review at length the considerations which led to the adoption of this amendment. These were stated in Atlantic Coast Line v. Riverside Mills,*411 219 U. S. 186, 199-203 (55 L. Ed. 167, 31 Sup. Ct. Rep. 164, 31 L. R. A. (N. S.) 7). It was there pointed out that along with singleness of rate and continuity of carriage in through shipments there had grown up the practice of requiring specific stipulations limiting the liability of each separate company to its own part of the through route, and, as a result, the shipper could look to the initial carrier for recompense only ‘for loss, damage or delay’ occurring on its own line. This ‘burdensome situation’ was ‘the matter which Congress undertook to regulate.’ * * The rule, said the court in defining the purpose of the Carmack Amendment, ‘is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility.’ * * It is now insisted that Congress failed to accomplish this paramount object; that while unity of responsibility was secured if the goods were injured in the course of transportation or were not delivered, the statute did not reach the case of a failure to transport with reasonable despatch. In such case it is said that, although there is a through shipment, the shipper must still look to the particular carrier whose neglect caused the delay. We do not think that the language of the amendment has the inadequacy attributed to it. The words ‘any loss, damage or injury to such property’ caused by the initial carrier or by any connecting carrier are comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination. It is not necessary, nor is it natural in view of the general purpose of the statute, to take the words ‘to the property’ as limiting the word ‘damage’ as well as the word ‘injury’ and thus as rendering the former wholly superfluous. It is said that there is a different responsibility on the part of the carrier with respect to delay from that which exists where there is a failure to carry safely. But the difference is with respect to the measure of the carrier’s obligation; the duty to transport with reasonable despatch is none the less an integral part of the normal undertaking of the carrier. And we can gather no*412 intent to unify only a portion of the carrier’s responsibility.”
The initial carrier was held liable for the damage sustained.
For further authoritative construction of this legislation see Georgia etc. R. Co. v. Blish Milling Co., 241 U. S. 190, 194 (60 L. Ed. 948, 36 Sup. Ct Rep. 541), and Cleveland etc. R. Co. v. Dettlebach, 239 U. S. 588 (60 L. Ed. 453, 36 Sup. Ct. Rep. 177). Under the construction which has been placed by the federal Supreme Court on the Carmack Amendment we are clear that the defendant is chargeable with the neglect of the Denver & Rio Grande Railroad Company to notify plaintiff’s assignors.
10. It is next contended that the bank of Hotchldss was the agent of plaintiff’s assignors, and that therefore the knowledge of the bank was the knowledge of plaintiff’s assignors. Inasmuch as this bank knew that the drafts drawn on Pierce & Maternes were not taken up and- the bills of lading were not surrendered it is argued that plaintiff is chargeable with this knowledge. It is alleged in the complaint that plaintiff’s assignors sent the respective drafts with bills of lading attached to the Hotchkiss bank with proper instructions. These allegations are admitted by the answer. We think that the pleadings admit that the Hotchkiss bank was the agent of plaintiff’s assignors: 3 R. C. L., pp. 610, 622, 624; 1 Mechem on Agency (2 ed.), §§ 332, 333, 337; 31 Cyc. 1597; Bank of Washington v. Triplett, 1 Pet. (U. S.) 25; (7 L. Ed. 37); Wilson v. Smith, 3 How. (U. S.) 763, 769, 770 (11 L. Ed. 820).
“It is a familiar and well-settled rule that, as to third parties, notice to an agent while acting within the scope of his authority is notice to the principal. But it is equally as well settled that such notice, in order to bind the principal, must relate to the business or transaction in reference to which the agent is authorized for and on behalf of his principal, and to matters over which his authority extends: Story on Agency, § 118; Mechem on Agency, § 718. If it relates to a matter over which the agent has no authority, and concerning which he is not authorized to act for his principal, although he may be an agent for other purposes, it will not affect the principal or be binding on him”: Pennoyer v. Willis, 26 Or. 8 (36 Pac. 568, 46 Am. St. Rep. 594).
“Claims for loss, damage or delay must be made in writing to the carrier at the point of- delivery or at the point of origin within four months after delivery of the property, or in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”
It is true that no formal bill stating in dollars the damages of plaintiff’s assignors was presented to the defendant until April 22, 1913, but under date of December 19 and December 22,1912, the defendant was notified in writing that plaintiff’s assignors had such a claim and insisted upon its payment. These letters were specific as to the shipment in question and gave defendant the prefiminary information necessary to a proper investigation of the facts. These letters were a sufficient assertion of the claim within the construction placed upon the clause in question by the federal Supreme Court: Georgia Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. Rep. 541, 545).
“If you find for plaintiff, the measure of damages for you to determine from the evidence should be the difference between the market value of the goods at Hotchkiss, Colorado, at the time the owner should have been notified of their arrival and non-delivery if due care had been taken, and the market value the goods had at same place at or about the time the shipper did receive such notice and was offered opportunity to receive the goods. You will ascertain the value, the market value of the goods at Hotchkiss, Colorado, at the time when.the plaintiff’s predecessors should have had notice of the non-delivery, and ascer*416 tain the value of the goods when the shippers were actually informed that the goods had been received and not delivered and the difference in those values would be the measure of damages, if you find defendant was negligent under the instructions heretofore given and that the plaintiff is entitled to damages and from the amount you thus arrive at if you find for the' plaintiff you will deduct the amount it is admitted was paid to the plaintiff’s predecessors and state that balance in your verdict.”
It is contended that this instruction is error because there was no evidence in the record as to the market value of the box shooks at the time when notice was given plaintiff’s assignors. The record sufficiently shows the market value of the shooks at the time when they were shipped, but it appears affirmatively that there was no market for them subsequent to September 15, 1912. The ease of Hardin Grain Co. v. Chicago etc. R. Co., 134 Mo App. 681 (114 S. W. 1117, 1118), sustains the defendant’s contention that it is error to instruct the jury to measure damages by the market value when there is no evidence of market value. A careful reading of the foregoing instruction given by the lower court indicates that the court corrected himself as to the point in question and that the.jury must have understood that the measure of damages would be the difference between the market value of the goods when plaintiff’s predecessors should have had notice, and their value when notice was actually given. There was but little evidence in the record tending to show what was the value of the goods when notice was given. One of plaintiff’s witnesses testified that they had some value, but the only testimony tending to fix this value in dollars is the amount which was secured for the box shooks when sold under the direction of the Denver & Rio Grande Railroad Company in 1913. If
“That it was the shipper’s intention that Pierce & Maternes should have at least ten days to take up the bill of lading after the arrival of the car, for it notified both Pierce & Maternes and the hank that a discount of two per cent would he allowed if the draft were paid within ten days.”
As to the first, second and fourth counts in the complaint, the testimony sustains this allegation. It clearly appears that the three cars of shooks referred to in these counts were sold on a contract under which Pierce & Maternes were allowed ten days in which to make payment, and were given a cash discount of 2 per cent if they paid within that time. As to the fifth count, while the allegation is identical the proof is that the purchasers were allowed 60 days’ time within which to make payment. The defendant is, of course, limited to its allegations and cannot avail itself of proof unsupported by its pleading. The record, therefore, would seem to show that Pierce & Maternes were allowed 10 days within which to pay the drafts and take up the hills of lading for the ears reaching Hotchkiss August 12th, 14th and 23d and September 4th. The terminal carrier was not chargeable with neglect in failing to notify the shipper until after the expiration of the 10 days in question. As to the cars reaching Hotchkiss August 12th, 14th and 23d, it was competent for the jury to find that a notice given the shipper at the expiration of 10 days from the arrival
On the whole case the record fails to show reversible error and the judgment is affirmed. Affirmed.
