Salberg v. Pennsylvania Railroad , 237 Pa. 495 ( 1912 )

Opinion by

Mr. Justice Potter,

The question involved in this appeal, which is that of the liability of the defendant company for the value of seventeen carloads of grain and feed delivered by the agent of the defendant to the consignee, without requiring the production and surrender of the bills of lading, was under consideration here before, and the case is reported in 228 Pa. 641. It is due to the court below to say that the writer of this opinion, in formulating the decision of the court upon the former appeal, failed to note accurately the distinction in the testimony on behalf of the plaintiffs between that as to their knowledge of the surrender of the bills of lading attached to sight drafts and that bearing upon the fact of the nonpayment of the drafts themselves. As the record stood upon the former appeal, the testimony both oral and documentary showed beyond question knowledge upon the part of plaintiffs that the drafts to which the bills of lading were attached were unpaid, and that they knew that notwithstanding this fact the grain had been delivered to Copelin, the consignee. We assumed that nonpayment of the drafts meant, as an unquestioned consequence, the retaining by the bank of the bills of lading attached to the drafts, and that knowledge of the delivery of the grain under these circumstances, necessarily involved knowledge that the cars were being delivered by the agent of the defendant company without requiring the surrender of the bills of lading. But a re-examination of the testimony, as shown by the record in the former appeal, and a careful comparison of it with the evidence presented upon this appeal, shows that the plaintiffs while admitting knowledge of the delivery of the shipments without payment of the drafts, said that they did not know whether the railroad company was delivering them without the production of the bills of lading, or whether the bank was surrendering the bills of lading without the payment of the drafts. Overlooking this distinction, we were led to the conclusion, as stated in the former opinion, that there was no room to doubt the fact of plaintiffs’ absolute knowledge of the deliveries of the cars without the surrender of the bills of lading. The testimony does, however, in this respect, raise a disputed question of fact, which was for the determination of the jury. It was the duty of the carrier to heed the provision of the bill of lading requiring its surrender before making delivery of a car, and it can only escape the consequences of its failure to discharge that duty by showing that the plaintiffs, the consignors, had been guilty of laches, or that their conduct was such as to estop them from setting up title to the goods under the circumstances. The trial judge submitted to the jury the question whether the plaintiffs ratified or approved the action of the defendant company in delivering cars without the surrender of the bills of lading, and the verdict was in favor of plaintiffs. As the court below said, there was no evidence that the plaintiffs ever waived directly their rights under the bills of lading, nor did it appear that there were any communications concerning the matter of delivery between the plaintiffs and the defendant company. The action of the local agent was in disregard of the rules of the railroad. The course of dealing whatever it was, can hardly be said to have been between the plaintiffs and the railroad; it was between the plaintiffs as grain dealers and their customer, who purchased the grain and feed in question. Nor do we see that the attempts made by plaintiffs to collect the price of the goods from the person to whom they had been improperly delivered, without requiring him to obtain and surrender the bills of lading, is to be necessarily regarded as a waiver of the rights of the shippers against the carrier, to recover for the wrongful delivery. The basis upon which the claim that plaintiffs ratified and acquiesced in the delivery of the cars without requiring the surrender of the bills of lading, lies in and depends upon the proof that plaintiffs had knowledge of the fact that such deliveries had actually been made. As opposed to the conditions shown to have existed, and from which such knowledge was fairly to have been inferred, Mr. Morey, one of the members of plaintiffs’ firm, who seemed to have been in active charge, testified positively that, while he did know the goods were delivered, yet he did not know that it was without the surrender of the bills of lading. He offered as an explanation of this statement, the suggestion that the bank might have violated its instructions, and have given up the bills of lading to the consignee without first requiring the payment of the sight drafts to which they were attached. He said in substance that he knew that either the bank or the railroad agent was at fault, but he did not know which, and made no effort to find out. His credibility was, however, for the jury; and, in the face of this testimony, the court below would not have been justified in giving binding instructions upon this point in favor of the defendant.

The verdict must, under the charge of the court, be accepted as establishing first, the fact that no cofirse of dealing was shown to have existed between the plaintiffs and the defendant company, which can be regarded as a waiver of the provision of the bills of lading which required their production and surrender before delivery of-the goods; and, secondly, the fact that the plaintiffs did not, with knowledge of the delivery of the goods without the surrender of bills of lading therefor in many instances, consent to, approve or ratify such a course of dealing between the consignee of the goods and the agent of the railroad company.

The assignments of error are overruled, and the judgment is affirmed.