Goodman v. Merchants' Despatch Transportation Co. , 6 Pa. Super. 168 ( 1897 )

Opinion by

Beaver, J.,

When this case was before us nearly a year ago, we sent it back, in order to allow the bill of lading furnished by the defendant to the plaintiffs to be received in evidence, and also that the facts relating to the delivery of the goods by the der fendant to the consignee might be submitted to the jury. Both of our directions were observed in the trial of the cause. A verdict was found by the jury for the defendants, upon which judgment was entered and from which the plaintiffs appeal.

The record shows twenty-eight assignments of error, but the first eight of these were practically withdrawn at the argument as not having been made in accordance with our rules. The material questions in the case related to the delivery of the goods shipped by the plaintiffs to the consignee at the place of destination, and the effect of the receipt of a portion of the value of the goods by the plaintiffs from a person other than the consignee. The consideration of these questions involves others which are, for the most part, collateral and incidental. The main point in the case was the delivery to Miehell, as the agent of the consignee, and the reshipment of the goods by his direction to a point other than the place of destination. The facts in regard to this delivery were in the main fairly submitted to the jury.

The plaintiffs make their principal argument on the twenty-second assignment of error which involves the refusal of the court to affirm the point that “ under all the evidence in this case, the verdict must be for the plaintiffs.” It is difficult to see how the court could have affirmed this point, in view of our directions in Goodman v. Transportation Company, 3 Pa. Superior Ct. 282, in which we say that “ the facts should have been submitted to the jury,” referring to the facts in relation to the delivery.

The only question in the case is as to the manner in which those facts were so submitted.- All of the plaintiffs’ points, except the first, second, ninth and thirteenth, were affirmed absolutely or with proper qualifications. How tbe plaintiffs could consistently ask the court to say that “ under the receipt offered in evidence, the defendant is responsible as a common carrier for the through carriage of the case of dry goods from Philadelphia to Tyler, Texas,” we cannot understand, their whole contention being that the receipt was merged in the bill of lading, nor can we see how the court could have affirmed a like proposition in regard to the bill of lading, when the receipt itself provides that “ the acceptance of this receipt for goods, made subject to the provisions of the bill of lading of this company, makes this an agreement between the Merchants’ Despatch Transportation Company and carriers engaged in transporting said goods and all parties interested in the property.”

The receipt and bill of lading, taken together, constituted the contract between the parties. No request was made of the court to determine as a matter of law whether the contract between the parties made the defendants common carriers or merely forwarders, and indeed, under the facts of the case, the question was of little practical importance. There is no denial of the fact that the goods were safely transported and delivered at Tyler, Texas. The real question, as we have already intimated, was, were they properly delivered? The trial judge in the court below, however, evidently treated the contract of the defendant as that of a common carrier, and charged the jury that “ it was the duty of the transportation company to deliver that case of dry goods to Mr. Robinson at Tyler, Texas, or show a good excuse for not having done so, that excuse being something other than negligence on their part or on the part of their employees or agents in the delivery of the goods.” The court below did not impose any duty upon the plaintiffs of showing negligence on the part of the defendant; but, on the other hand, made it incumbent upon the defendant to show that it was not negligent.

Taking the charge as a whole, in connection with the answers to the points of both plaintiffs and defendant, we can see no substantial error. The plaintiffs’ side of the case was presented to the jury quite as favorably for them as they had a right to ask or expect.

The judgment is affirmed.